| Mosaid v. Red Hat - Before You File A Complaint, Learn The Law (And The Facts) |
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Tuesday, January 10 2012 @ 08:40 AM EST
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If you were a patent holder contemplating suing a bunch of companies for patent infringement, what's the first thing you would want to know? Do you think maybe it would be that you actually own the patent(s) you are asserting. That thought obviously never crossed MOSAID's mind when it brought suit back in August against Red Hat, IBM and others. (See Mosaid v. Red Hat - A new patent infringement complaint aimed at Linux).
And if that weren't bad enough, your attorneys then demonstrate they have no clue that the America Invents Act (patent reform act) was signed into law on September 16, 2011, or that pleading patent infringement requires something more than saying I own a patent and you infringe it. These guys can't get anything right.
Of course, what makes it all the worse is that MOSAID Technologies is that patent troll that has now climbed into bed with Microsoft and Nokia to try and cause more havoc with Android. There are a number of things I love about Canada - MOSAID is not one of them.
Let's recap the history of this litigation. MOSAID brought its original complaint (PDF; Text] for patent infringement on August 9, 2011, against Red Hat, IBM, Alcatel-Lucent, Adobe, Juniper, VMWare, and NetApp. That original complaint asserted two U.S. patents: 6,505,241 ('241), allegedly infringed by Adobe, Alcatel, IBM, Juniper, and NetApp; and 5,892,914 ('914), allegedly infringed by Red Hat. Interestingly, although VMware is identified as a defendant in the heading and as a party to the suit, the complaint contains no specific allegation that VMware infringed either of the patents, despite the fact that VMware's vFabric GemFire Platform is identified as an infringing product. Screw-up number one.
On September 16, 2011, President Obama signs the America Invents Act into law. More on that in a bit.
On September 27, 2011, purported defendants IBM, Juniper, Adobe, Alcatel-Lucent, NetApp, and VMware wrote to MOSAID informing MOSAID of its second big mistake - MOSAID didn't own the '241 patent. Oops!
After receiving the Complaint, defendants discovered that MOSAID could not assert the ‘241 patent because more than three years earlier—on June 30, 2008—MOSAID’s predecessor-in-interest, Network Caching Technology, LLC, had dedicated the entire patent to the public pursuant to 35 U.S.C. § 253.
Screw up number two!
But rather than simply dropping all of those parties from the complaint, MOSAID proceeded, on October 6, 2011, to file a first amended complaint [PDF; Text] that dropped Netapps but now asserted new claims against IBM, Adobe, Alcatel-Lucent, Juniper and VMware (remember, VMware was never specifically named in the first complaint) under the '914 patent. In addition, realizing that it had failed to be sufficiently specific with its original claims of infringement, MOSAID attempted to provide more specificity in this first amended complaint. As we will see, adding these new allegations against IBM, etal constituted screw up number three.
As if it had not shot itself in the foot enough times already, MOSAID decides to file a second amended complaint on November 11, 2011 [PDF; Text]. But, in order to file a second amended complaint MOSAID required permission from the court or notice to the parties, something MOSAID counsel totally overlooked. Trying to correct this defect MOSAID filed a motion seeking leave [PDF; Text] A WHOLE MONTH LATER on December 12, 2011. Well, timeliness doesn't appear to be a MOSAID forte.
In its supporting brief [PDF; Text] MOSAID claimed it should be granted the right to file the second amended complaint because:
This case is relatively near its inception, as Defendants have not yet filed a responsive pleading. The Third Circuit, in applying Rule 15(a), liberally allows amendments unless to do so would prejudice a nonmoving party. See, e.g., Dole v. Arco Chemical Co., 921 F.2d 484 (3d Cir. 1990). Allowing amendment at this early stage will cause no prejudice to the Defendants; therefore, the Court should allow the Second Amended Complaint.
MOSAID acknowledged that, despite its "diligent" attempts, it could not get the named defendants to concur to the filing of the second amended complaint. Imagine that! But MOSAID assured the court that the defendants would not be unduly prejudiced by this second amendment. SAY WHAT!
The second amended complaint added claims under FOUR NEW PATENTS that were never mentioned in either the original or the first amended complaint:
| Patent | Title | Defendants |
| ‘049 | System for accessing distributed data
cache channel at each network node to
pass requests and data | Red Hat, Adobe, ALU, IBM and
Juniper |
| ‘475 | Request interceptor in network nodes
for determining local storage of file
image satisfying predetermined criteria | Adobe, IBM, Juniper and VMware |
| ‘706 | Network system for transmitting
overwritten portion of client side node
cache image to server site through
intermediate downstream nodes
updating cache images of data requested
by client | IBM |
| ‘452 | Network distributed site cache ram
claimed as up/down stream
request/reply channel for storing
anticipated data and meta data | Red Hat |
Moreover, the second amended complaint did not allege that any defendant infringed all five patents, nor did it allege that any two defendants infringed the same set of patents. Oh, and then there is this:
The ‘914, ‘049, ‘475, ‘706 and ‘452 patents each claim priority to the same Patent Cooperation Treaty Application, PCT App. No. PCT/US92/04939. The purported inventor of all of these patents, William Pitts, previously assigned most, if not all, of his rights to all patents stemming from the PCT application to Auspex Systems, Inc. in 1987. The current holder of these rights is dismissed defendant NetApp, not MOSAID. Defendants incorporate herein the Opening Brief in Support of Defendant VMware’s Motion to Dismiss for Lack of Standing (D.I. 46), which, although written to the ‘914 patent, describes the assignment and ownership history of all patents claiming priority to the PCT application.
That, my friends, constitutes screw ups four, five, and six, in part because MOSAID still doesn't seem to understand what it owns and doesn't own and in part because of a little thing called the America Invents Act.
I could describe why the America Invents Act, and specifically new 35 U.S.C. § 299, presents a problem, but I could not do it better than the defendants themselves:
35 U.S.C. § 299, which went into effect on September 16, 2011, permits joinder
of multiple defendants in a patent case only if:
(1) any right to relief is asserted against them jointly, severally, or
in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences
relating to the making, using importing into the United States,
offering for sale, or selling of the same accused product or process;
and
(2) questions of fact common to all defendants or counterclaim
defendants will arise in the action.
35 U.S.C. § 299(a). The statute identifies insufficient conditions for joinder:
(b) Allegations Insufficient for Joinder – For purposes of this
subsection, accused infringers may not be joined in one action as
defendants or counterclaim defendants, or have their actions consolidated for trial, based solely on allegations that they each
have infringed the patent or patents in suit.
35 U.S.C. § 299(b).
The AIA further states that “[t]he amendments made by [new 35 U.S.C. § 299]
shall apply to any civil action commenced on or after the date of the enactment of this Act.”
AIA § 19 at 129. Because Congress did not specify otherwise, the normal relation back rules
govern when an action was “commenced.” See Farina v. Nokia Inc., 625 F.3d 97, 111 (3d Cir.
2010) (holding that the newly enacted Class Action Fairness Act (“CAFA”) applied when the
amended complaint did not relate back to the original complaint). The Farina court reasoned:
Congress passed CAFA aware of the general principles of relationback
analysis, both under state law and Fed.R.Civ.P. 15(c). It is
only natural that Congress would intend to incorporate into CAFA
the case law governing amended pleadings. “Precisely because
CAFA does not define ‘commencement’ of an action, it is obvious
that CAFA is not intended to replace case[ ]law deciding when a
lawsuit is considered ‘commenced…’” . . . Under this standard,
the Second Amended Complaint commenced a new action.
Id. at 112. Congress similarly did not define “commenced” for purposes of the AIA.
For an amendment to relate back to the original complaint, Fed. R. Civ. P.
15(c)(1)(B) requires that “the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original pleading”
FED.R.CIV.P. 15(c)(1) (2011). “An alleged infringement of one patent is not the ‘same conduct,
transaction or occurrence’ as the alleged infringement of another patent.” Illinois Tool Works,
Inc. v. Foster Grant Co., 395 F. Supp. 234, 250-51 (N.D. Ill. 1974), aff’d on the merits, 547 F.2d
1300 (7th Cir. 1976), cert. denied, 431 U.S. 929 (1977); 6A CHARLES ALAN WRIGHT & ARTHUR
R.MILLER, FEDERAL PRACTICE AND PROCEDURE § 1497 (3d ed. 2011) (“amendments alleging . . .
the infringement of a different patent, or even a separate violation of the same statute may be
subject to the defense of statute of limitations because of a failure to meet the transaction
standard.”). Similarly, a claim cannot relate back to an earlier complaint where the right to assert
infringement did not exist at the time of the original filing. See Abbott Labs. v. Johnson and
Johnson, Inc., 524 F. Supp. 2d 553, 558 n. 10 (D. Del. 2007) (citing Illinois Tool Works, 395 F.
Supp. at 251).
MOSAID’s motion for leave to amend should be denied because the SAC [second amended complaint] violates
35 U.S.C. § 299, and the amendment would therefore be futile. The SAC does not and could not
allege that the parties are jointly or severally liable for any acts of infringement. Nor does it
allege a common “transaction, occurrence, or series of transactions or occurrences” among the
defendants’ “accused product[s] or process[es].” Instead, it alleges that six defendants’ unrelated
products infringe various combinations of five patents. The only commonality amongst the
defendants is that the SAC alleges that their products infringe one of those five patents, the ‘914 patent. These allegations do not meet the requirements of 35 U.S.C. § 299(a), and indeed are
expressly prohibited by 35 U.S.C. § 299(b).
Although the AIA and 35 U.S.C. § 299 went into effect after MOSAID filed its
original Complaint, MOSAID filed the FAC [first amended complaint] on October 6, 2011 (and the motion for leave to file
the SAC two months later), after the AIA’s September 16, 2011 effective date. The FAC cannot
relate back to the original Complaint as to Adobe, ALU, IBM, Juniper and VMware because the
original Complaint alleged infringement only of the statutorily disclaimed ‘241 patent against
those defendants. The Court lacks jurisdiction to hear allegations relating to a statutorily
disclaimed patent, and for these defendants there is no case or controversy to relate back to.
The FAC’s allegations that these defendants infringe the ‘914 patent is not the same “conduct,
transaction or occurrence” as the alleged infringement of the ‘241 patent. The later allegations of
patent infringement cannot satisfy Rule 15(c) and cannot relate back to the original filing. See,
e.g., Illinois Tool, 395 F. Supp. at 250-51.
The original Complaint alleged that Red Hat infringed the ‘914 patent, but this
alone does not permit relation back. See Farina, 625 F.3d at 111-13. For example, in Farina, a
newly asserted claim against a single set of defendants, the “LG defendants,” prevented the
relation back of Farina’s entire Second Amended Complaint for all defendants. Id. A fortiori,
the potential relation back of a single defendant in this case cannot require the relation back of
the other five.
The SAC seeks to add four additional patents to the allegations of the FAC, which
would be asserted against various combinations of the defendants. The reasons why the FAC
does not relate back to the original Complaint apply a fortiori to the SAC. Moreover, the SAC
alleges indirect and willful infringement by all parties for all asserted patents, which requires,
inter alia, that defendants knew of the patents. The SAC alleges, however, that defendants
learned of the patents in suit only after the filing of the original Complaint. (See, e.g., D.I. 39
¶¶ 21, 38, 54, 59, and 65 (asserting defendants learned of each patent on or after the service of
the original Complaints)). Without knowledge of the patent, no claim for indirect infringement
or willfulness could have existed at the time of the original Complaint, and the SAC’s indirect
infringement claims cannot relate back to a time before the existence of the asserted right. See
Abbott Labs., 524 F. Supp. 2d at 558 n. 10. Because the SAC does not relate back to the original
Complaint, the AIA, enacted after the original Complaint but before the FAC and SAC, applies
to and prohibits the SAC’s joinder of defendants.
In other words, the second amended complaint is so far removed from the original complaint that it is, for all intents and purposes, an original complaint. As such, it is not in a form permitted under the Patent Act as it was amended in September because it incorporates numerous unrelated parties, patents, and allegations of infringement.
There are other reasons this second amended complaint should not be allowed as set forth in the defendants' answering brief [PDF; Text]. Let's just say that they have the issue covered in spades. As for the original claim under the '914 patent against Red Hat, Red Hat has filed a separate motion to dismiss [PDF; Text] and brief [PDF; Text] in which it seeks dismissal of the willful infringement, inducement, and contributory infringement allegations related to the '914 patent, although not the basic infringement allegation.
One would hope the court would throw out the entire proceeding and force MOSAID to start over, which MOSAID is almost certain to do. One could hardly claim that MOSAID would be prejudiced by such an action, but allowing MOSAID to proceed with the second amended complaint would unquestionably prejudice the defendants.
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Docket
1 – Filed and Effective: 08/09/2011
COMPLAINT
Document Text: COMPLAINT filed with Jury Demand against Adobe Systems Inc., Alcatel Lucent USA Inc., International Business Machines Corporation, Juniper Networks Inc., Netapp Inc., Red Hat Inc., VMware Inc. - Magistrate Consent Notice to Pltf. ( Filing fee $ 350, receipt number 0311-928915.) - filed by Mosaid Technologies Inc.. (Attachments: # 1 Exhibit A part 1, # 2 Exhibit A part 2, # 3 Exhibit A part 3, # 4 Exhibit B part 1, # 5 Exhibit B part 2, # 6 Exhibit B part 3, # 7 Civil Cover Sheet)(els)
2 – Filed and Effective: 08/09/2011
Notice
Document Text: Notice, Consent and Referral forms re: U.S. Magistrate Judge jurisdiction (els)
- Filed and Effective: 08/09/2011
Summons
Document Text: Summons Issued as to Adobe Systems Inc. on 8/9/2011; Alcatel Lucent USA Inc. on 8/9/2011; International Business Machines Corporation on 8/9/2011; Juniper Networks Inc. on 8/9/2011; Netapp Inc. on 8/9/2011; Red Hat Inc. on 8/9/2011; VMware Inc. on 8/9/2011. Requesting party should contact the Help Desk at 302-573-6170 to arrange for pick-up or mailing of the summons. (els)
3 – Filed and Effective: 08/09/2011
Report
Document Text: Report to the Commissioner of Patents and Trademarks for Patent/Trademark Number(s) 6,505,241; 5,892,914;. (els)
- Filed and Effective: 08/10/2011
Summons
Document Text: Summons Reissued as to Adobe Systems Inc., Alcatel Lucent USA Inc., International Business Machines Corporation, Juniper Networks Inc., Netapp Inc., Red Hat Inc., VMware Inc.. (dzs, )
4 – Filed and Effective: 08/16/2011
SUMMONS
Document Text: SUMMONS Returned Executed by Mosaid Technologies Inc.. VMware Inc. served on 8/11/2011, answer due 9/1/2011. (Brauerman, Stephen)
5 - Filed and Effective: 08/16/2011
SUMMONS
Document Text: SUMMONS Returned Executed by Mosaid Technologies Inc.. Red Hat Inc. served on 8/11/2011, answer due 9/1/2011. (Brauerman, Stephen)
6 – Filed and Effective: 08/16/2011
SUMMONS
Document Text: SUMMONS Returned Executed by Mosaid Technologies Inc.. Netapp Inc. served on 8/11/2011, answer due 9/1/2011. (Brauerman, Stephen)
7 – Filed and Effective: 08/16/2011
SUMMONS
Document Text: SUMMONS Returned Executed by Mosaid Technologies Inc.. Juniper Networks Inc. served on 8/11/2011, answer due 9/1/2011. (Brauerman, Stephen)
8 – Filed and Effective: 08/16/2011
SUMMONS
Document Text: SUMMONS Returned Executed by Mosaid Technologies Inc.. International Business Machines Corporation served on 8/11/2011, answer due 9/1/2011. (Brauerman, Stephen)
9 – Filed and Effective: 08/16/2011
SUMMONS
Document Text: SUMMONS Returned Executed by Mosaid Technologies Inc.. Alcatel Lucent USA Inc. served on 8/11/2011, answer due 9/1/2011. (Brauerman, Stephen)
10 – Filed and Effective: 08/16/2011
SUMMONS
Document Text: SUMMONS Returned Executed by Mosaid Technologies Inc.. Adobe Systems Inc. served on 8/11/2011, answer due 9/1/2011. (Brauerman, Stephen)
11 – Filed and Effective: 08/17/2011
STIPULATION
Document Text: STIPULATION TO EXTEND TIME Defendant's Answer to October 17, 2011 - filed by International Business Machines Corporation. (Seitz, Collins)
- Filed and Effective: 08/17/2011
Case Assignment
Document Text: Case Assigned to Judge Gregory M. Sleet. Please include the initials of the Judge (GMS) after the case number on all documents filed. (rjb)
- Filed and Effective: 08/17/2011
ORDER
Document Text: SO ORDERED, re 11 STIPULATION TO EXTEND TIME Defendant's Answer to October 17, 2011 filed by International Business Machines Corporation. Set/Reset Answer Deadlines: International Business Machines Corporation answer due 10/17/2011. Ordered by Chief Judge Gregory M. Sleet on 8/17/11. (mmm)
12 – Filed and Effective: 08/18/2011
STIPULATION
Doucment Text: STIPULATION TO EXTEND TIME FOR ALCATEL-LUCENT TO MOVE, ANSWER OR OTHERWISE RESPOND TO THE COMPLAINT to October 17, 2011 - filed by Alcatel Lucent USA Inc., Mosaid Technologies Inc.. (Blumenfeld, Jack)
- Filed and Effective: 08/18/2011
ORDER
Document Text: SO ORDERED, re 12 STIPULATION TO EXTEND TIME FOR ALCATEL-LUCENT TO MOVE, ANSWER OR OTHERWISE RESPOND TO THE COMPLAINT to October 17, 2011 filed by Alcatel Lucent USA Inc., Mosaid Technologies Inc., Set/Reset Answer Deadlines: Alcatel Lucent USA Inc. answer due 10/17/2011. Ordered by Chief Judge Gregory M. Sleet on 8/18/2011. (asw)
13 – Filed and Effective: 08/25/2011
MOTION
Document Text: MOTION for Pro Hac Vice Appearance of Attorney Kenneth R. Adamo and Attorney Jon T. Hohenthaner - filed by International Business Machines Corporation. (Seitz, Collins)
- Filed and Effective: 08/29/2011
ORDER
Document Text: SO ORDERED, re 13 MOTION for Pro Hac Vice Appearance of Attorney Kenneth R. Adamo and Attorney Jon T. Hohenthaner filed by International Business Machines Corporation. Ordered by Chief Judge Gregory M. Sleet on 8/29/2011. (asw)
14 – Filed and Effective: 08/29/2011
MOTION
MOTION for Extension of Time to File /Unopposed Motion to Extend Time for Defendants Adobe Systems, Inc.; Net App., Inc.; Red Hat, Inc.; and VMWare, Inc. to Respond to the Complaint until October 17, 2011 - filed by Mosaid Technologies Inc.. (Brauerman, Stephen)
- Filed and Effective: 08/30/2011
ORDER
Document Text: SO ORDERED, re 14 MOTION for Extension of Time to File /Unopposed Motion to Extend Time for Defendants Adobe Systems, Inc.; Net App., Inc.; Red Hat, Inc.; and VMWare, Inc. to Respond to the Complaint until October 17, 2011 filed by Mosaid Technologies Inc., Set/Reset Answer Deadlines: Adobe Systems Inc. answer due 10/17/2011; Netapp Inc. answer due 10/17/2011; Red Hat Inc. answer due 10/17/2011; VMware Inc. answer due 10/17/2011. Ordered by Chief Judge Gregory M. Sleet on 8/30/2011. (asw)
- Filed and Effective: 08/31/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Kenneth R. Adamo,Jon T. Hohenthaner for International Business Machines Corporation added for electronic noticing. (dmp, )
15 – Filed and Effective: 09/02/2011
MOTION
Document Text: MOTION for Extension of Time to File /Unopposed Motion to Extend Time for Juniper Networks, Inc. to Respond to Complaint until October 17, 2011 - filed by Mosaid Technologies Inc.. (Brauerman, Stephen)
- Filed and Effective: 09/06/2011
ORDER
Document Text: SO ORDERED, re 15 MOTION for Extension of Time to File /Unopposed Motion to Extend Time for Juniper Networks, Inc. to Respond to Complaint until October 17, 2011 filed by Mosaid Technologies Inc., Set/Reset Answer Deadlines: Juniper Networks Inc. answer due 10/17/2011. Ordered by Chief Judge Gregory M. Sleet on 9/6/2011. (asw)
16 - Filed and Effective: 10/06/2011
FIRST AMENDED COMPLAINT
Document Text: First AMENDED COMPLAINT against Adobe Systems Inc., Alcatel Lucent USA Inc., International Business Machines Corporation, Juniper Networks Inc., Red Hat Inc., VMware Inc.- filed by Mosaid Technologies Inc..(Brauerman, Stephen)
17 - Filed and Effective: 10/06/2011
NOTICE
Document Text: NOTICE of Voluntary Dismissal by Mosaid Technologies Inc. as to NetApp Inc. (Brauerman, Stephen)
18 – Filed and Effective: 10/14/2011
STIPULATION
Document Text: STIPULATION TO EXTEND TIME FOR ALCATEL-LUCENT USA, INC. TO MOVE, ANSWER OR OTHERWISE RESPOND TO THE FIRST AMENDED COMPLAINT to November 23, 2011 - filed by Alcatel Lucent USA Inc., Mosaid Technologies Inc.. (Blumenfeld, Jack)
19 – Filed and Effective: 10/14/2011
STIPULATION
Document Text: STIPULATION TO EXTEND TIME to answer or otherwise respond to the First Amended Complaint (D.I. 16) to November 23, 2011 - filed by Red Hat Inc.. (Elliott, Tara)
- Filed and Effective: 10/17/2011
ORDER
Document Text: SO ORDERED, re 18 STIPULATION TO EXTEND TIME FOR ALCATEL-LUCENT USA, INC. TO MOVE, ANSWER OR OTHERWISE RESPOND TO THE FIRST AMENDED COMPLAINT to November 23, 2011 filed by Alcatel Lucent USA Inc., Mosaid Technologies Inc., Set/Reset Answer Deadlines: Alcatel Lucent USA Inc. answer due 11/23/2011. Ordered by Chief Judge Gregory M. Sleet on 10/17/2011. (asw)
- Filed and Effective: 10/17/2011
ORDER
Document Text: ORAL ORDER DENYING 19 STIPULATION TO EXTEND TIME to answer or otherwise respond to the First Amended Complaint (D.I. 16) to November 23, 2011 filed by Red Hat Inc. The parties shall refer to the Court's website and follow Chief Judge Sleet's procedure for filing Stipulations to Extend Time. After reviewing the Court's procedure, the parties may RE-FILE the Stipulation. Ordered by Chief Judge Gregory M. Sleet on 10/17/2011. (asw)
- Filed and Effective: 10/17/2011
CORRECTING ENTRY
Document Text: CORRECTING ENTRY: The docket entry re Oral Order dated 10/17/2011 has been corrected to indicate that D.I. 19 Stipulation is DENIED. (asw)
20 – Filed and Effective: 10/17/2011
STIPULATION
Document Text: STIPULATION Revised Extend time to Answer Complaint to First Amended Complaint by Red Hat Inc.. (Elliott, Tara)
- Filed and Effective: 10/17/2011
ORDER
Document Text: SO ORDERED, re 20 Stipulation filed by Red Hat Inc., Set/Reset Answer Deadlines: Red Hat Inc. answer due 11/23/2011. Ordered by Chief Judge Gregory M. Sleet on 10/17/2011. (asw)
21 – Filed and Effective: 10/17/2011
Proposed Stipulation
Document Text: Proposed STIPULATION TO EXTEND TIME to Answer the Amended Complaint to November 23, 2011 - filed by International Business Machines Corporation. (Seitz, Collins)
- Filed and Effective: 10/17/2011
ORDER
Document Text: SO ORDERED, re 21 Proposed STIPULATION TO EXTEND TIME to Answer the Amended Complaint to November 23, 2011 filed by International Business Machines Corporation, Set/Reset Answer Deadlines: International Business Machines Corporation answer due 11/23/2011. Ordered by Chief Judge Gregory M. Sleet on 10/17/2011. (asw)
22 – Filed and Effective: 10/19/2011
Motion
Document Text: MOTION for Pro Hac Vice Appearance of Attorney Monte M.F. Cooper - filed by VMware Inc.. (Kraman, Pilar)
- Filed and Effective: 10/20/2011
Order
Document Text: SO ORDERED, re 22 MOTION for Pro Hac Vice Appearance of Attorney Monte M.F. Cooper filed by VMware Inc. Ordered by Chief Judge Gregory M. Sleet on 10/20/2011. (asw)
23 – Filed and Effective: 10/20/2011
Motion
Document Text: MOTION for Pro Hac Vice Appearance of Attorney Karen G. Johnson-McKewan and Attorney Jason K. Yu - filed by VMware Inc.. (Kraman, Pilar)
24 – Filed and Effective: 10/20/2011
JOINT STIPULATION
Document Text: Joint STIPULATION TO EXTEND TIME for Defendant VMware, Inc. to answer, move or otherwise respond to Plaintiff's Amended Complaint to November 23, 2011 - filed by Mosaid Technologies Inc., VMware Inc.. (Kraman, Pilar)
- Filed and Effective: 10/21/2011
Order
Document Text: SO ORDERED, re 23 MOTION for Pro Hac Vice Appearance of Attorney Karen G. Johnson-McKewan and Attorney Jason K. Yu filed by VMware Inc. Ordered by Chief Judge Gregory M. Sleet on 10/21/2011. (asw)
- Filed and Effective: 10/21/2011
Order
Document Text: SO ORDERED, re 24 Joint STIPULATION TO EXTEND TIME for Defendant VMware, Inc. to answer, move or otherwise respond to Plaintiff's Amended Complaint to November 23, 2011 filed by VMware Inc., Mosaid Technologies Inc., Set/Reset Answer Deadlines: VMware Inc. answer due 11/23/2011. Ordered by Chief Judge Gregory M. Sleet on 10/21/2011. (asw)
- Filed and Effective: 10/21/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Monte M.F. Cooper for VMware Inc. added for electronic noticing. (nms)
- Filed and Effective: 10/25/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Karen G. Johnson-McKewan for VMware Inc. added for electronic noticing. (dmp, )
- Filed and Effective: 10/25/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Jason K. Yu for VMware Inc. added for electronic noticing. (nms)
25 – Filed and Effective: 10/25/2011
Motion
Document Text: MOTION for Pro Hac Vice Appearance of Attorney I. Neel Chatterjee - filed by VMware Inc.. (Kraman, Pilar)
- Filed and Effective: 10/26/2011
Order
Document Text: SO ORDERED, re 25 MOTION for Pro Hac Vice Appearance of Attorney I. Neel Chatterjee filed by VMware Inc. Ordered by Chief Judge Gregory M. Sleet on 10/26/2011. (asw)
- Filed and Effective: 10/27/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Indra Neel Chatterjee for VMware Inc. added for electronic noticing. (nms)
26 – Filed and Effective: 11/01/2011
Notice
Document Text: NOTICE of Withdrawal of Counsel of Jon T. Hohenthaner by International Business Machines Corporation (Seitz, Collins)
27 – Filed and Effective: 11/02/2011
STIPULATION
Document Text: STIPULATION TO EXTEND TIME to RESPOND to Complaint to November 23, 2011 - filed by Juniper Networks Inc.. (Seitz, Collins)
28 – Filed and Effective: 11/04/2011
MOTION
Document Text: MOTION for Pro Hac Vice Appearance of Attorney Jennifer A. Bauer - filed by Alcatel Lucent USA Inc.. (Blumenfeld, Jack)
- Filed and Effective: 11/07/2011
ORDER
Document Text: SO ORDERED, re 27 STIPULATION TO EXTEND TIME to RESPOND to Complaint to November 23, 2011 filed by Juniper Networks Inc., Set/Reset Answer Deadlines: Juniper Networks Inc. answer due 11/23/2011. Ordered by Chief Judge Gregory M. Sleet on 11/7/2011. (asw)
- Filed and Effective: 11/07/2011
ORDER
Document Text: SO ORDERED, re 28 MOTION for Pro Hac Vice Appearance of Attorney Jennifer A. Bauer filed by Alcatel Lucent USA Inc. Ordered by Chief Judge Gregory M. Sleet on 11/7/2011. (asw)
29 – Filed and Effective: 11/08/2011
Motion
Document Text: MOTION for Pro Hac Vice Appearance of Attorney Richard Birnholz and Jonathan Kagan - filed by Juniper Networks Inc.. (Attachments: # 1 Certification of Richard Birnholz, # 2 Certification of Jonathan Kagan)(Seitz, Collins)
30 – Filed and Effective: 11/11/2011
Notice
Document Text: NOTICE of Appearance by Denise Seastone Kraft on behalf of Adobe Systems Inc. (Attachments: # 1 Certificate of Service)(Kraft, Denise)
31 – Filed and Effective: 11/11/2011
Notice
Document Text: NOTICE of Appearance by Aleine Michelle Porterfield on behalf of Adobe Systems Inc. (Attachments: # 1 Certificate of Service)(Porterfield, Aleine)
32 – Filed and Effective: 11/11/2011
STIPULATION
Document Text: STIPULATION TO EXTEND TIME to Answer, Move, or Otherwise Respond to Plaintiff's First Amended Complaint For Patent Infringement to November 23, 2011 - filed by Adobe Systems Inc.. (Attachments: # 1 Certificate of Service)(Kraft, Denise)
33 – Filed and Effective: 11/11/2011
SECOND AMENDED COMPLAINT
Document Text: Second AMENDED COMPLAINT against Adobe Systems Inc., Alcatel Lucent USA Inc., International Business Machines Corporation, Juniper Networks Inc., Red Hat Inc., VMware Inc.- filed by Mosaid Technologies Inc.. (Attachments: # 1 Exhibit 1 (Part 1), # 2 Exhibit 1 (Part 2), # 3 Exhibit 1 (Part 3), # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Patent/Trademark Report)(Brauerman, Stephen)
- Filed and Effective: 11/14/2011
ORDER
Document Text: SO ORDERED, re 29 MOTION for Pro Hac Vice Appearance of Attorney Richard Birnholz and Jonathan Kagan filed by Juniper Networks Inc. Ordered by Chief Judge Gregory M. Sleet on 11/14/2011. (asw)
- Filed and Effective: 11/15/2011
ORDER
Document Text: SO ORDERED, re 32 STIPULATION TO EXTEND TIME to Answer, Move, or Otherwise Respond to Plaintiff's First Amended Complaint For Patent Infringement to November 23, 2011 filed by Adobe Systems Inc., Set/Reset Answer Deadlines: Adobe Systems Inc. answer due 11/23/2011. Ordered by Chief Judge Gregory M. Sleet on 11/15/2011. (asw)
34 – Filed and Effective: 11/15/2011
Motion
Document Text: MOTION for Pro Hac Vice Appearance of Attorney Christopher Freeman, James E. Marina and David Rokach of Kirkland & Ellis LLP - filed by International Business Machines Corporation. (Seitz, Collins)
Order
Document Text: SO ORDERED, re 34 MOTION for Pro Hac Vice Appearance of Attorney Christopher Freeman, James E. Marina and David Rokach of Kirkland & Ellis LLP filed by International Business Machines Corporation. Ordered by Chief Judge Gregory M. Sleet on 11/15/2011. (asw)
Motion
Document Text: MOTION for Pro Hac Vice Appearance of Attorney Andrew Valentine - filed by Adobe Systems Inc.. (Attachments: # 1 Text of Proposed Order, # 2 Certification of Counsel, # 3 Certificate of Service)(Kraft, Denise)
- Filed and Effective: 11/16/2011
Order
Document Text: SO ORDERED, re 35 MOTION for Pro Hac Vice Appearance of Attorney Andrew Valentine filed by Adobe Systems Inc. Ordered by Chief Judge Gregory M. Sleet on 11/16/2011. (asw)
- Filed and Effective: 11/21/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney James E. Marina for International Business Machines Corporation added for electronic noticing. (dmp, )
- Filed and Effective: 11/21/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Andrew P. Valentine for Adobe Systems Inc. added for electronic noticing. (dmp, )
36 – Filed and Effective: 11/21/2011
Motion
Document Text: MOTION for Pro Hac Vice Appearance of Attorney Kathi Kelly Lutton and Shelley K. Mack - filed by Red Hat Inc.. (Booker, Gregory)
- Filed and Effective: 11/23/2011
Order
Document Text: SO ORDERED, re 36 MOTION for Pro Hac Vice Appearance of Attorney Kathi Kelly Lutton and Shelley K. Mack filed by Red Hat Inc. Ordered by Chief Judge Gregory M. Sleet on 11/23/11. (mmm)
37 – Filed and Effective: 11/23/2011
Joint Motion
Document Text: Joint MOTION for Extension of Time to File Answer re SO ORDERED, Set/Reset Answer Deadline(s),, Set/Reset Answer Deadline(s), SO ORDERED, Set/Reset Answer Deadline(s),, Set/Reset Answer Deadline(s), 16 Amended Complaint, SO ORDERED, Set/Reset Answer Deadline(s),, Set/Reset Answer Deadline(s), SO ORDERED, Set/Reset Answer Deadline(s) for Defendants Adobe Systems, Inc., Alcatel-Lucent USA, Inc., International Business Machines Corp., Juniper Networks, Inc., Red Hat, Inc. and VMare, Inc. to answer First Amended Complaint to December 23, 2011 - filed by Red Hat Inc.. (Booker, Gregory)
- Filed and Effective: 11/23/2011
Order
Document Text: SO ORDERED, re 37 Joint MOTION for Extension of Time to File Answer re SO ORDERED, Set/Reset Answer Deadline(s), Set/Reset Answer Deadline(s), SO ORDERED, Set/Reset Answer Deadline(s), Set/Reset Answer Deadline(s), 16 Amended Complaint, SO ORDERED, Set/Reset AnswerJoint MOTION for Extension of Time to File Answer re SO ORDERED, Set/Reset Answer Deadline(s), Set/Reset Answer Deadline(s), SO ORDERED, Set/Reset Answer Deadline(s), Set/Reset Answer Deadline(s), 16 Amended Complaint, SO ORDERED, Set/Reset AnswerJoint MOTION for Extension of Time to File Answer re SO ORDERED, Set/Reset Answer Deadline(s), Set/Reset Answer Deadline(s), SO ORDERED, Set/Reset Answer Deadline(s), Set/Reset Answer Deadline(s), 16 Amended Complaint, SO ORDERED, Set/Reset Answer filed by Red Hat Inc., Set/Reset Answer Deadlines: Adobe Systems Inc. answer due 12/23/2011; Alcatel Lucent USA Inc. answer due 12/23/2011; International Business Machines Corporation answer due 12/23/2011; Juniper Networks Inc. answer due 12/23/2011; Red Hat Inc. answer due 12/23/2011; VMware Inc. answer due 12/23/2011. Ordered by Chief Judge Gregory M. Sleet on 11/23/2011. (asw)
- Filed and Effective: 11/30/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Jonathan S. Kagan,Richard M. Birnholz for Juniper Networks Inc. added for electronic noticing. (dmp, )
38 – Filed and Effective: 12/01/2011
Motion
Document Text: MOTION for Pro Hac Vice Appearance of Attorney Steven G. Hill, Douglas R. Kertscher, Blake H. Frye, and Martha L. Decker of Hill, Kertscher & Wharton, LLP - filed by Mosaid Technologies Inc.. (Attachments: # 1 Certification of Steven G. Hill, # 2 Cerftification of Douglas R. Kertscher, # 3 Certification of Blake H. Frye, # 4 Certification of Martha L. Decker)(Brauerman, Stephen)
- Filed and Effective: 12/01/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Katherine K. Lutton for Red Hat Inc. added for electronic noticing. (dmp, )
- Filed and Effective: 12/02/2011
Order
Document Text: SO ORDERED, re 38 MOTION for Pro Hac Vice Appearance of Attorney Steven G. Hill, Douglas R. Kertscher, Blake H. Frye, and Martha L. Decker of Hill, Kertscher & Wharton, LLP filed by Mosaid Technologies Inc. Ordered by Chief Judge Gregory M. Sleet on 12/2/2011. (asw)
- Filed and Effective: 12/12/2011
pro Hac Vice
Document Text: Pro Hac Vice Attorney Steven G. Hill for Mosaid Technologies Inc. added for electronic noticing. (rbe)
39 - Filed and Effective: 12/12/2011
MOTION
Document Text: MOTION for Leave to File a Second Amended Complaint - filed by Mosaid Technologies Inc.. (Attachments: # 1 Exhibit A (Proposed Second Amended Complaint), # 2 Exhibit B, # 3 Local Rule 7.1.1 Certification, # 4 Text of Proposed Order)(Brauerman, Stephen)
40 - Filed and Effective: 12/12/2011
BRIEF
Document Text: OPENING BRIEF in Support re 39 MOTION for Leave to File a Second Amended Complaint filed by Mosaid Technologies Inc..Answering Brief/Response due date per Local Rules is 12/30/2011. (Brauerman, Stephen)
- Filed and Effective: 12/15/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Shelley K. Mack for Red Hat Inc. added for electronic noticing. (rbe)
41 – Filed and Effective: 12/19/2011
Motion
Document Text: MOTION for Extension of Time to Respond to MOSAID's First Amended Complaint - filed by Adobe Systems Inc., Alcatel Lucent USA Inc., International Business Machines Corporation, Juniper Networks Inc., Red Hat Inc., VMware Inc.. (Blumenfeld, Jack)
- Filed and Effective: 12/20/2011
Pro Hac Vice
Document Text: Pro Hac Vice Attorney Douglas R. Kertscher,Blake H. Frye for Mosaid Technologies Inc. added for electronic noticing. (dmp, )
42 – Filed and Effective: 12/23/2011
Motion
Document Text: MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for a More Definite Statement, and Motion to Strike - filed by VMware Inc.. (Attachments: # 1 Text of Proposed Order)(Kraman, Pilar)
43 – Filed and Effective: 12/23/2011
BRIEF
Document Text: OPENING BRIEF in Support re 42 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for a More Definite Statement, and Motion to Strike filed by VMware Inc..Answering Brief/Response due date per Local Rules is 1/9/2012. (Kraman, Pilar)
44 – Filed and Effective: 12/23/2011
Declaration
Document Text: DECLARATION re 43 Opening Brief in Support, 42 MOTION to Dismiss for Failure to State a Claim or, in the Alternative, for a More Definite Statement, and Motion to Strike - Declaration of Stacey E. Stillman - by VMware Inc.. (Attachments: # 1 Exhibit A)(Kraman, Pilar)
45 – Filed and Effective: 12/23/2011
Motion
Document Text: MOTION to Dismiss for Lack of Jurisdiction Over the Subject Matter - filed by VMware Inc.. (Attachments: # 1 Text of Proposed Order)(Kraman, Pilar)
46 – Filed and Effective: 12/23/2011
BRIEF
Document Text: OPENING BRIEF in Support re 45 MOTION to Dismiss for Lack of Jurisdiction Over the Subject Matter filed by VMware Inc..Answering Brief/Response due date per Local Rules is 1/9/2012. (Kraman, Pilar)
47 – Filed and Effective: 12/23/2011
Declaration
Document Text: DECLARATION re 46 Opening Brief in Support, 45 MOTION to Dismiss for Lack of Jurisdiction Over the Subject Matter - Declaration of Monte M.F. Cooper - by VMware Inc.. (Attachments: # 1 Exhibit A-D, # 2 Exhibit E-J)(Kraman, Pilar)
48 – Filed and Effective: 12/23/2011
MOTION
Document Text: MOTION to Dismiss for Failure to State a Claim - filed by Red Hat Inc.. (Attachments: # 1 Text of Proposed Order Proposed Order)(Booker, Gregory)
49 - Filed and Effective: 12/23/2011
BRIEF
Document Text: OPENING BRIEF in Support re 48 MOTION to Dismiss for Failure to State a Claim filed by Red Hat Inc..Answering Brief/Response due date per Local Rules is 1/9/2012. (Booker, Gregory)
50 – Filed and Effective: 12/23/2011
Motion
Document Text: MOTION to Dismiss for Failure to State a Claim International Business Machines Corp.'s Motion to Dismiss Plaintiff's Indirect and Willful Infringement Claims - filed by International Business Machines Corporation. (Seitz, Collins)
51 – Filed and Effective: 12/23/2011
Proposed Order
Document Text: PROPOSED ORDER regarding International Business Machines Corp.'s Motion to Dismiss Plaintiff's Indirect and Willful Infringement Claims re 50 MOTION to Dismiss for Failure to State a Claim International Business Machines Corp.'s Motion to Dismiss Plaintiff's Indirect and Willful Infringement Claims by International Business Machines Corporation. (Seitz, Collins)
52 – Filed and Effective: 12/23/2011
BRIEF
Document Text: OPENING BRIEF in Support re 50 MOTION to Dismiss for Failure to State a Claim International Business Machines Corp.'s Motion to Dismiss Plaintiff's Indirect and Willful Infringement Claims filed by International Business Machines Corporation. Answering Brief/Response due date per Local Rules is 1/9/2012. (Seitz, Collins)
53 – Filed and Effective: 12/23/2011
Motion
Document Text: MOTION to Dismiss for Failure to State a Claim Mosaid's First Amended Complaint And To Transfer Venue To The Northern District of California - filed by Juniper Networks Inc.. (Attachments: # 1 Text of Proposed Order)(Seitz, Collins)
54 – Filed and Effective: 12/23/2011
BRIEF
Document Text: OPENING BRIEF in Support re 53 MOTION to Dismiss for Failure to State a Claim Mosaid's First Amended Complaint And To Transfer Venue To The Northern District of California filed by Juniper Networks Inc..Answering Brief/Response due date per Local Rules is 1/9/2012. (Attachments: # 1 Exhibit A)(Seitz, Collins)
55 – Filed and Effective: 12/23/2011
Declaration
Document Text: DECLARATION re 53 MOTION to Dismiss for Failure to State a Claim Mosaid's First Amended Complaint And To Transfer Venue To The Northern District of California, 54 Opening Brief in Support, Declaration of Archana Bhuta by Juniper Networks Inc.. (Seitz, Collins)
56 – Filed and Effective: 12/23/2011
Motion
Document Text: MOTION to Dismiss for Failure to State a Claim Motion to Dismiss Under Rule 12(B)(6) and Motion to Strike - filed by Adobe Systems Inc.. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Kraft, Denise)
57 – Filed and Effective: 12/23/2011
BRIEF
Document Text: OPENING BRIEF in Support re 56 MOTION to Dismiss for Failure to State a Claim Motion to Dismiss Under Rule 12(B)(6) and Motion to Strike filed by Adobe Systems Inc..Answering Brief/Response due date per Local Rules is 1/9/2012. (Attachments: # 1 Certificate of Service)(Kraft, Denise)
58 – Filed and Effective: 12/23/2011
Declaration
Document Text: DECLARATION re 57 Opening Brief in Support, 56 MOTION to Dismiss for Failure to State a Claim Motion to Dismiss Under Rule 12(B)(6) and Motion to Strike by Adobe Systems Inc.. (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(Kraft, Denise)
59 – Filed and Effective: 12/23/2011
Disclosure Statement
Document Text: Disclosure Statement pursuant to Rule 7.1 filed by Adobe Systems Inc.. (Attachments: # 1 Certificate of Service)(Kraft, Denise)
60 – Filed and Effective: 12/23/2011
Motion
Document Text: MOTION to Dismiss for Failure to State a Claim - filed by Alcatel Lucent USA Inc.. (Saindon, Paul)
61 – Filed and Effective: 12/23/2011
BRIEF
Document Text: OPENING BRIEF in Support re 60 MOTION to Dismiss for Failure to State a Claim filed by Alcatel Lucent USA Inc..Answering Brief/Response due date per Local Rules is 1/9/2012. (Attachments: # 1 Exhibit A)(Saindon, Paul)
62 – Filed and Effective: 12/23/2011
Disclosure Statement
Document Text: Disclosure Statement pursuant to Rule 7.1 filed by Alcatel Lucent USA Inc. identifying Corporate Parent Alcatel Lucent for Alcatel Lucent USA Inc... (Saindon, Paul)
63 – Filed and Effective: 12/29/2011
Amended Motion
Document Text: AMENDED DOCUMENT by Mosaid Technologies Inc.. Amendment to 39 MOTION for Leave to File a Second Amended Complaint /Amendment to Rule 7.1.1 Certification of Counsel Pursuant to Local Rule 7.1.1. (Attachments: # 1 Exhibit A)(Brauerman, Stephen)
64 – Filed and Effective: 12/30/2011
ANSWERING BRIEF
Document Text: ANSWERING BRIEF in Opposition re 39 MOTION for Leave to File a Second Amended Complaint and Motion To Transfer Venue To The Northern District of California filed by Juniper Networks Inc..Reply Brief due date per Local Rules is 1/9/2012. (Attachments: # 1 Exhibit A)(Seitz, Collins)
65 – Filed and Effective: 12/30/2011
ANSWERING BRIEF
Document Text: ANSWERING BRIEF in Opposition re 39 MOTION for Leave to File a Second Amended Complaint filed by Adobe Systems Inc., Alcatel Lucent USA Inc., International Business Machines Corporation, Red Hat Inc., VMware Inc..Reply Brief due date per Local Rules is 1/9/2012. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Saindon, Paul)
66 – Filed and Effective: 01/03/2012
Notice
Document Text: NOTICE of Withdrawal of Motion by Adobe Systems Inc., Alcatel Lucent USA Inc., International Business Machines Corporation, Juniper Networks Inc., Red Hat Inc., VMware Inc. re 41 MOTION for Extension of Time to Respond to MOSAID's First Amended Complaint (Saindon, Paul)
67 – Filed and Effective: 01/06/2012
Disclosure Statement
Document Text: Disclosure Statement pursuant to Rule 7.1 filed by VMware Inc. identifying Corporate Parent EMC Corporation for VMware Inc... (Kraman, Pilar)
68 – Filed and Effective: 01/06/2012
Disclosure Statement
Document Text: Disclosure Statement pursuant to Rule 7.1 filed by International Business Machines Corporation. (Seitz, Collins)
69 – Filed and Effective: 01/06/2012
Disclosure Statement
Document Text: Disclosure Statement pursuant to Rule 7.1 filed by Juniper Networks Inc.. (Seitz, Collins)
70 – Filed and Effective: 01/06/2012
Motion
Document Text: MOTION for Extension of Time to File /Unopposed Motion to Extend Time for MOSAID to file Answering Briefs in Response to Defendants' Motions to Dismiss and for Leave to Extend Page Limits on Omnibus Answering Brief - filed by Mosaid Technologies Inc.. (Brauerman, Stephen)
************
Documents
16
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOSAID TECHNOLOGIES INC.,
Plaintiff,
v.
ADOBE SYSTEMS, INC., ALCATEL-
LUCENT USA, INC., INTERNATIONAL
BUSINESS MACHINES CORP., JUNIPER
NETWORKS, INC., RED HAT, INC., AND
VMWARE, INC.
Defendants.
C.A. No.: 1:11-cv-00698-GMS
JURY TRIAL DEMANDED
________________________________
FIRST AMENDED COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff MOSAID Technologies Inc. (“MOSAID”), by and through its undersigned
counsel, for its First Amended Complaint for Patent Infringement against the above-named
Defendants hereby states:
THE PARTIES
1. Plaintiff MOSAID Technologies Inc. is a corporation subject to the laws of
Canada with its principal place of business at 11 Hines Road, Suite 203, Ottawa, Ontario,
Canada K2K 2X1. MOSAID’s principal place of business in the United States is located at 5700
Granite Parkway, Suite 960, Plano, Texas 75024.
2. Defendant Adobe Systems, Inc. (“Adobe”) is a Delaware corporation. Adobe
may be served through its registered agent, Corporation Service Company, 2711 Centerville
Road, Suite 400, Wilmington, DE 19808. Adobe is authorized to do business in the State of
Delaware, and regularly conducts such business within the State and within this judicial district
by way of sales and distribution of its products and services, including those accused of
infringement herein.
3. Defendant Alcatel-Lucent USA, Inc., (“Alcatel”) is a Delaware corporation.
Alcatel-Lucent may be served via its registered agent, Corporation Service Company
2711 Centerville Road, Suite 400, Wilmington, DE 19808. Alcatel is authorized to do business
in the State of Delaware, and regularly conducts such business within the State and within this
judicial district by way of sales and distribution of its products and services, including those
accused of infringement herein.
4. Defendant International Business Machines Corp (“IBM”) is a Delaware
corporation. IBM may be served via its registered agent, the Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. IBM is authorized to do
business in the State of Delaware, and regularly conducts such business within the State and
within this judicial district by way of sales and distribution of its products and services, including
those accused of infringement herein.
5. Defendant Juniper Networks, Inc. (“Juniper”) is a Delaware corporation. Juniper
may be served via its registered agent, the Corporation Trust Company, Corporation Trust Center
1209 Orange Street, Wilmington, DE 19801. Juniper is authorized to do business in the State of
Delaware, and regularly conducts such business within the State and within this judicial district
by way of sales and distribution of its products and services, including those accused of
infringement herein.
6. [Withdrawn.]
7. Defendant Red Hat, Inc. (“Red Hat”) is a Delaware corporation. Red Hat may be
served via its registered agent, the Corporation Trust Company, Corporation Trust Center, 1209
Orange Street, Wilmington, DE 19801. Red Hat is authorized to do business in the State of
Delaware, and regularly conducts such business within the State and within this judicial district
2
by way of sales and distribution of its products and services, including those accused of
infringement herein.
8. Defendant VMware, Inc. (“VMware”) is a Delaware corporation. VMware may
be served via its registered agent, the Corporation Trust Company, Corporation Trust Center,
1209 Orange Street, Wilmington, DE 19801. VMware is authorized to do business in the State
of Delaware, and regularly conducts such business within the State and within this judicial
district by way of sales and distribution of its products and services, including those accused of
infringement herein.
JURISDICTION AND VENUE
9. This is an action for patent infringement arising under the provisions of the Patent
Laws of the United States of America, Title 35, United States Code.
10. Subject-matter jurisdiction over MOSAID’s claims is conferred upon this Court
by 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1338(a) (patent jurisdiction).
11. This Court has personal jurisdiction over Defendants because Defendants are
subject to general jurisdiction in the State of Delaware. Defendants also have established
minimum contacts with the forum. All Defendants are authorized to do business in the State of
Delaware and regularly conduct such business. Defendants manufacture, sell and/or offer to
sell—products and services, including the products and services specified herein, that are and
have been used, offered for sale, sold and/or purchased in Delaware, including in this judicial
district. Defendants—directly and/or through their distribution networks——place their
infringing software, computer products and related services within the stream of commerce,
which stream is directed at this district. Therefore, the exercise of personal jurisdiction over
Defendants would not offend traditional notions of fair play and substantial justice.
3
12. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c)
and §1400(b).
COUNT I – INFRINGEMENT OF U.S. PATENT NO. 6,505,241
13. [Withdrawn].
14. [Withdrawn].
15. [Withdrawn].
16. [Withdrawn].
17. [Withdrawn].
18. [Withdrawn].
19. [Withdrawn].
COUNT II – INFRINGEMENT OF U.S. PATENT NO. 5,892,914
20. MOSAID reasserts and incorporates herein by reference the allegations of all
preceding paragraphs of this Complaint as if fully set forth herein.
21. On April 6, 1999, U.S. Patent No. 5,892,914 (the “‘914 Patent”) was duly and
legally issued by the USPTO. MOSAID is the owner by assignment of all right, title and interest
in and to the ‘914 Patent, including all right to recover for any and all past infringement thereof.
The ‘914 Patent is attached to the original complaint in this matter, and each of the Defendants
has been aware of the ‘914 Patent since at least as early as on or about August 2011, when each
was served with the summons and complaint in this case.
22. Upon information and belief, Defendant RedHat has in the past and continues to
infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or
through the inducement of others, one or more of the claims of the ‘914 Patent by making and
using in this judicial district and elsewhere in the United States, a caching method which
4
infringes at least one claim of the ‘914 Patent. Importing, selling and/or offering to sell products
and services which contribute to or induce the further making or using of said caching method by
others with knowledge of the ‘914 Patent further infringes the ‘914 Patent.
23. At a minimum, each of the following products made, sold and/or offered for sale
by the Defendant RedHat perform for Red Hat, when used for their intended purposes, the
process for projecting an image of a stored dataset from one network distributed cache site to
another in response to a request to access such dataset from a client site, and the process
consisting of the steps described in the ‘914 Patent, and are and are therefore infringing one or
more claims of the '914 Patent:
a. RedHat Enterprise Linux with Resilient Storage Add-On;
b. RedHat Enterprise Server V6;
24. RedHat performs the ‘914 Patent by using the methods described in one or more
claims of the ‘914 Patent, and are therefore infringing one or more claims of the '914 Patent. By
way of illustration only, RedHat has tested, demonstrated and developed true and accurate
technical literature relating to the deployment of RedHat Enterprise Linux with Resilient Storage
Add-On and RedHat Enterprise Server V6 in ways that have used the steps claimed in the ‘914
Patent.
25. As a consequence of the infringement by Defendant RedHat complained of
herein, MOSAID is entitled to recovery of past damages in the form of, at a minimum, a
reasonable royalty.
26. Upon information and belief, Defendant RedHat will continue to infringe the ‘914
Patent unless enjoined by this Court.
5
27. Upon information and belief, Defendants Adobe, Alcatel, IBM, Juniper, and
VMWare have in the past and continue to infringe, directly, indirectly, literally, under the
doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of
the claims of the ‘914 Patent by making, using, importing, selling and/or offering to sell, in this
judicial district and elsewhere in the United States, software, appliances and services which are
covered by at least one caching method claim of the ‘914 Patent. Importing, selling and/or
offering to sell products and services which contribute to or induce the further making or using
of said caching method by others with knowledge of the ‘914 Patent further infringes the ‘914
Patent.
28. At a minimum, each of the following products and related services made, used,
sold and/or offered for sale by each of the Defendants Adobe, Alcatel, IBM, Juniper, and
VMWare perform, when used for their intended purposes, the process for projecting an image of
a stored dataset from one network distributed cache site to another in response to a request to
access such dataset from a client site, including the process consisting of the steps described in
one or more claims of the ‘914 Patent, and are and are therefore infringing one or more claims of
the '914 Patent:
a. Adobe Flash Memory Servers;
b. Alcatel Velocix Digital Media Delivery Platform;
c. IBM WebSphere Extreme Scale solution and related Datapower XC10
appliances;
d. Juniper Media Flow Solution and related Media Flow Controllers; and
e. VMware vFabric GemFire Platform and related GemFire servers.
29. By way of illustration only, upon information and belief, Adobe has tested,
6
demonstrated and developed true and accurate technical literature relating to the deployment of
multiple interconnected Adobe Flash Memory Servers. Such testing and demonstration
constitute use of said servers in ways that have performed the steps claimed in the ‘914 Patent.
30. By way of illustration only, upon information and belief, Alcatel has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the Velocix Digital Media Delivery Platform. Such testing and demonstration has included use
of said platform in ways that have performed the steps claimed in the ‘914 Patent.
31. By way of illustration only, upon information and belief, IBM has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the WebSphere Extreme Scale solution and related Datapower XC10 appliances. Such testing
and demonstration has included the use of said solution and said appliance in ways that have
performed the steps claimed in the ‘914 Patent.
32. By way of illustration only, upon information and belief, Juniper has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the Media Flow Solution and related Media Flow Controllers. Such testing and demonstration
has included the use of said solution and said controllers in ways that have performed the steps
claimed in the ‘914 Patent.
33. By way of illustration only, upon information and belief, VMWare has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the vFabric GemFire Platform and related GemFire servers. Such testing and demonstration has
included the use of said platform in ways that have performed the steps claimed in the ‘914
Patent.
34. By way of illustration only, the aforesaid Defendants, with full knowledge of the
7
‘914 Patent, continues to provide online technical literature, user group support, and other forms
of technical support to other users of the aforesaid accused software solutions, platforms and
related appliances, assisting said users to perform the steps claimed in the ‘914 Patent.
35. By way of illustration only, the aforesaid Defendants, with full knowledge of the
‘914 Patent, continue to provide marketing and sales-related literature, relating to the aforesaid
accused software solutions, platforms and related appliances, encouraging said users to perform
the steps claimed in the ‘914 Patent.
36. As a consequence of the infringement of the ‘914 Patent by the aforesaid
Defendants, MOSAID is entitled to recovery of past damages in the form of, at a minimum, a
reasonable royalty.
PRAYER FOR RELIEF
WHEREFORE, MOSAID prays for entry of judgment and an order that:
(1) Defendants have infringed one or more of the claims of the ‘914 Patent, either
literally and/or under the doctrine of equivalents;
(2) Defendants account for and pay to MOSAID all damages, assessment of interest,
and costs of MOSAID caused by Defendants’ patent infringement;
(3) MOSAID be granted permanent injunctive relief pursuant to 35 U.S.C. § 283
enjoining Defendants, their officers, agents, servants, employees, affiliates and those persons in
active concert of participation with them from further acts of patent infringement of the Asserted
Patents;
(4) In the event the Court determines that it will not enter injunctive relief,
Defendants continue to pay royalties to MOSAID for its infringement of the ‘914 Patent on a
going-forward basis;
8
(5) Defendants account for and pay for increased damages for willful infringement
under 35 U.S.C. § 284;
(6) Costs and attorney’s fees be awarded to MOSAID, as this is an exceptional case
under 35 U.S.C. § 285; and
(7) MOSAID be granted such further and additional relief as the Court may deem just
and proper under the circumstances.
DEMAND FOR JURY TRIAL
MOSAID demands trial by jury on all claims and issues so triable.
October 6, 2011
OF COUNSEL:
Steven G. Hill
Douglas R. Kertscher
HILL, KERTSCHER & WHARTON, LLP
[address telephone]
BAYARD, P.A.
/s/ Stephen B. Brauerman
Richard D. Kirk (rk0922)
Stephen B. Brauerman (sb4952)
[address email telephone]
Attorneys for Plaintiff Mosaid
Technologies Inc.
9
17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOSAID TECHNOLOGIES INC.,
Plaintiff,
ADOBE SYSTEMS, INC., ALCATEL-
LUCENT USA, INC., INTERNATIONAL
BUSINESS MACHINES CORP., JUNIPER
NETWORKS, INC., NETAPP, INC., RED
HAT, INC., AND VMWARE, INC.
Defendants.
v. C.A. No.: 1:11-cv-00698-GMS
JURY TRIAL DEMANDED
___________________________________
NOTICE OF VOLUNTARY DISMISSAL OF NETAPP, INC.
PLEASE TAKE NOTICE that, pursuant to Rule 41(a) of the Federal Rules of Civil
Procedure, Plaintiff MOSAID Technologies Inc., by and through its undersigned counsel hereby
voluntarily dismisses its claims against Defendant NetApp Inc. in the above-captioned action.
October 6, 2011
OF COUNSEL:
Steven G. Hill
Douglas R. Kertscher
HILL, KERTSCHER & WHARTON, LLP
[address telephone]
BAYARD, P.A.
/s/ Stephen B. Brauerman
Richard D. Kirk (rk0922)
Stephen B. Brauerman (sb4952)
[address email telephone]
Attorneys for Plaintiff Mosaid
Technologies Inc.
33
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOSAID TECHNOLOGIES INC.,
Plaintiff,
ADOBE SYSTEMS, INC., ALCATEL-
BUSINESS MACHINES CORP., JUNIPER
NETWORKS, INC., RED HAT, INC., AND
VMWARE, INC.
Defendants.
v. C.A. No.: 1:11-cv-00698-GMS
JURY TRIAL DEMANDED
____________________________________
SECOND AMENDED COMPLAINT FOR PATENT INFRINGEMENT
Plaintiff MOSAID Technologies Inc. (“MOSAID”), by and through its undersigned
counsel, for its Second Amended Complaint for Patent Infringement against the above-named
Defendants hereby states:
THE PARTIES
1. Plaintiff MOSAID Technologies Inc. is a corporation subject to the laws of
Canada with its principal place of business at 11 Hines Road, Suite 203, Ottawa, Ontario,
Canada K2K 2X1. MOSAID’s principal place of business in the United States is located at 5700
Granite Parkway, Suite 960, Plano, Texas 75024.
2. Defendant Adobe Systems, Inc. (“Adobe”) is a Delaware corporation. Adobe
may be served through its registered agent, Corporation Service Company, 2711 Centerville
Road, Suite 400, Wilmington, DE 19808. Adobe is authorized to do business in the State of
Delaware, and regularly conducts such business within the State and within this judicial district
by way of sales and distribution of its products and services, including those accused of
infringement herein.
3. Defendant Alcatel-Lucent USA, Inc., (“Alcatel”) is a Delaware corporation.
Alcatel-Lucent may be served via its registered agent, Corporation Service Company
2711 Centerville Road, Suite 400, Wilmington, DE 19808. Alcatel is authorized to do business
in the State of Delaware, and regularly conducts such business within the State and within this
judicial district by way of sales and distribution of its products and services, including those
accused of infringement herein.
4. Defendant International Business Machines Corp (“IBM”) is a Delaware
corporation. IBM may be served via its registered agent, the Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801. IBM is authorized to do
business in the State of Delaware, and regularly conducts such business within the State and
within this judicial district by way of sales and distribution of its products and services, including
those accused of infringement herein.
5. Defendant Juniper Networks, Inc. (“Juniper”) is a Delaware corporation. Juniper
may be served via its registered agent, the Corporation Trust Company, Corporation Trust Center
1209 Orange Street, Wilmington, DE 19801. Juniper is authorized to do business in the State of
Delaware, and regularly conducts such business within the State and within this judicial district
by way of sales and distribution of its products and services, including those accused of
infringement herein.
6. [Withdrawn.]
7. Defendant Red Hat, Inc. (“Red Hat”) is a Delaware corporation. Red Hat may be
served via its registered agent, the Corporation Trust Company, Corporation Trust Center, 1209
Orange Street, Wilmington, DE 19801. Red Hat is authorized to do business in the State of
Delaware, and regularly conducts such business within the State and within this judicial district
2
by way of sales and distribution of its products and services, including those accused of
infringement herein.
8. Defendant VMware, Inc. (“VMware”) is a Delaware corporation. VMware may
be served via its registered agent, the Corporation Trust Company, Corporation Trust Center,
1209 Orange Street, Wilmington, DE 19801. VMware is authorized to do business in the State
of Delaware, and regularly conducts such business within the State and within this judicial
district by way of sales and distribution of its products and services, including those accused of
infringement herein.
JURISDICTION AND VENUE
9. This is an action for patent infringement arising under the provisions of the Patent
Laws of the United States of America, Title 35, United States Code.
10. Subject-matter jurisdiction over MOSAID’s claims is conferred upon this Court
by 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1338(a) (patent jurisdiction).
11. This Court has personal jurisdiction over Defendants because Defendants are
subject to general jurisdiction in the State of Delaware. Defendants also have established
minimum contacts with the forum. All Defendants are authorized to do business in the State of
Delaware and regularly conduct such business. Defendants manufacture, sell and/or offer to
sell—products and services, including the products and services specified herein, that are and
have been used, offered for sale, sold and/or purchased in Delaware, including in this judicial
district. Defendants—directly and/or through their distribution networks——place their
infringing software, computer products and related services within the stream of commerce,
which stream is directed at this district. Therefore, the exercise of personal jurisdiction over
Defendants would not offend traditional notions of fair play and substantial justice.
3
12. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c)
and §1400(b).
COUNT I – INFRINGEMENT OF U.S. PATENT NO. 6,505,241
13. [Withdrawn].
14. [Withdrawn].
15. [Withdrawn].
16. [Withdrawn].
17. [Withdrawn].
18. [Withdrawn].
19. [Withdrawn].
COUNT II – INFRINGEMENT OF U.S. PATENT NO. 5,892,914
20. MOSAID reasserts and incorporates herein by reference the allegations of all
preceding paragraphs of this Complaint as if fully set forth herein.
21. On April 6, 1999, U.S. Patent No. 5,892,914 (the “‘914 Patent”) was duly and
legally issued by the U.S. Patent and Trademark Office (“USPTO”). MOSAID is the owner by
assignment of all right, title and interest in and to the ‘914 Patent, including all right to recover
for any and all past infringement thereof. The ‘914 Patent is attached hereto as “Exhibit 1,” and
each of the Defendants has been aware of the ‘914 Patent since at least as early as on or about
August 2011, when each was served with the summons and complaint in this case.
22. Upon information and belief, Defendant Red Hat has in the past and continues to
infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or
through the inducement of others, one or more of the claims of the ‘914 Patent by making and
using in this judicial district and elsewhere in the United States, a caching method which
4
infringes at least one claim of the ‘914 Patent. Importing, selling and/or offering to sell products
and services which contribute to or induce the further making or using of said caching method by
others with knowledge of the ‘914 Patent further infringes the ‘914 Patent.
23. At a minimum, when used for their intended purposes, each of the following
products and related services, which are made, used, sold and/or offered for sale by the
Defendant Red Hat, perform the process for projecting an image of a stored dataset from one
network distributed cache site to another in response to a request to access such dataset from a
client site, and the process consisting of the steps described in the ‘914 Patent, and are and are
therefore infringing one or more claims of the '914 Patent:
a. Red Hat Enterprise Linux with Resilient Storage Add-On;
b. Red Hat Enterprise Server V6;
24. Red Hat performs the ‘914 Patent by using the methods described in one or more
claims of the ‘914 Patent, and are therefore infringing one or more claims of the '914 Patent. By
way of illustration only, Red Hat has tested, demonstrated and developed true and accurate
technical literature relating to the deployment of Red Hat Enterprise Linux with Resilient
Storage Add-On and Red Hat Enterprise Server V6 in ways that have used the steps claimed in
the ‘914 Patent.
25. As a consequence of the infringement by Defendant Red Hat complained of
herein, MOSAID is entitled to recovery of past damages in the form of, at a minimum, a
reasonable royalty.
26. Upon information and belief, Defendant Red Hat will continue to infringe the
‘914 Patent unless enjoined by this Court.
5
27. Upon information and belief, Defendants Adobe, Alcatel, IBM, Juniper, and
VMware have in the past and continue to infringe, directly, indirectly, literally, under the
doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of
the claims of the ‘914 Patent by making, using, importing, selling and/or offering to sell, in this
judicial district and elsewhere in the United States, software, appliances and services which are
covered by at least one caching method claim of the ‘914 Patent. Importing, selling and/or
offering to sell products and services which contribute to or induce the further making or using
of said caching method by others with knowledge of the ‘914 Patent further infringes the ‘914
Patent.
28. At a minimum, each of the following products and related services made, used,
sold and/or offered for sale by each of the Defendants Adobe, Alcatel, IBM, Juniper, and
VMware perform, when used for their intended purposes, the process for projecting an image of
a stored dataset from one network distributed cache site to another in response to a request to
access such dataset from a client site, including the process consisting of the steps described in
one or more claims of the ‘914 Patent, and are therefore infringing one or more claims of the
'914 Patent:
a. Adobe Flash Memory Server;
b. Alcatel Velocix Digital Media Delivery Platform;
c. IBM WebSphere Extreme Scale solution and related Datapower XC10
appliance;
d. Juniper Media Flow Solution and related Media Flow Controllers;
e. VMware vFabric GemFire Platform.
29. By way of illustration only, upon information and belief, Adobe has tested,
6
demonstrated and developed true and accurate technical literature relating to the deployment of
multiple interconnected Adobe Flash Memory Servers. Such testing and demonstration
constitute use of said servers in ways that have performed the steps claimed in the ‘914 Patent.
30. By way of illustration only, upon information and belief, Alcatel has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the Velocix Digital Media Delivery Platform. Such testing and demonstration has included use
of said platform in ways that have performed the steps claimed in the ‘914 Patent.
31. By way of illustration only, upon information and belief, IBM has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the WebSphere Extreme Scale solution and related Datapower XC10 appliance. Such testing
and demonstration has included the use of said solution and said appliance in ways that have
performed the steps claimed in the ‘914 Patent.
32. By way of illustration only, upon information and belief, Juniper has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the Media Flow Solution and related Media Flow Controllers. Such testing and demonstration
has included the use of said solution and said controllers in ways that have performed the steps
claimed in the ‘914 Patent.
33. By way of illustration only, upon information and belief, VMware has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the vFabric GemFire Platform. Such testing and demonstration has included the use of said
platform in ways that have performed the steps claimed in the ‘914 Patent.
34. By way of illustration only, the aforesaid Defendants, with full knowledge of the
‘914 Patent, continues to provide online technical literature, user group support, and other forms
7
of technical support to other users of the aforesaid accused software solutions, platforms and
related appliances, assisting said users to perform the steps claimed in the ‘914 Patent.
35. By way of illustration only, the aforesaid Defendants, with full knowledge of the
‘914 Patent, continue to provide marketing and sales-related literature, relating to the aforesaid
accused software solutions, platforms and related appliances, encouraging said users to perform
the steps claimed in the ‘914 Patent.
36. As a consequence of the infringement of the ‘914 Patent by the aforesaid
Defendants, MOSAID is entitled to recovery of past damages in the form of, at a minimum, a
reasonable royalty.
COUNT III – INFRINGEMENT OF U.S. PATENT NO. 5,611,049
37. MOSAID reasserts and incorporates herein by reference the allegations of all
preceding paragraphs of this Complaint as if fully set forth herein.
38. On March 11, 1997, U.S. Patent No. 5,611,049 (the “‘049 Patent”) was duly and
legally issued by the USPTO. MOSAID is the owner by assignment of all right, title and interest
in and to the ‘049 Patent, including all right to recover for any and all past infringement thereof.
The ‘049 Patent is attached hereto as “Exhibit 2,” and each of the Defendants has been aware of
the ‘049 Patent since at least as early as on or about August 2011, when each was served with the
summons and complaint in this case, and, upon information and belief, commenced investigation
into the patent portfolio at issue in this case.
39. Upon information and belief, Defendant Red Hat has in the past and continues to
infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or
through the inducement of others, one or more of the claims of the ‘049 Patent by making and
using in this judicial district and elsewhere in the United States, a caching method which
8
infringes at least one claim of the ‘049 Patent. Importing, selling and/or offering to sell products
and services which contribute to or induce the further making or using of said caching method by
others with knowledge of the ‘049 Patent further infringes the ‘049 Patent.
40. At a minimum, when used for their intended purposes, each of the following
products and related services, which are made, used, sold and/or offered for sale by the
Defendant Red Hat, perform the process for projecting an image of a stored dataset from one
network distributed cache site, the process consisting of the steps described in the ‘049 Patent,
and are and are therefore infringing one or more claims of the '049 Patent:
a. Red Hat Enterprise Linux with Resilient Storage Add-On;
b. Red Hat Enterprise Server V6;
41. Red Hat performs the ‘049 Patent by using the methods described in one or more
claims of the ‘049 Patent, and are therefore infringing one or more claims of the '049 Patent. By
way of illustration only, Red Hat has tested, demonstrated and developed true and accurate
technical literature relating to the deployment of Red Hat Enterprise Linux with Resilient
Storage Add-On and Red Hat Enterprise Server V6 in ways that have used the steps claimed in
the ‘049 Patent.
42. As a consequence of the infringement by Defendant Red Hat complained of
herein, MOSAID is entitled to recovery of past damages in the form of, at a minimum, a
reasonable royalty.
43. Upon information and belief, Defendant Red Hat will continue to infringe the
‘049 Patent unless enjoined by this Court.
44. Upon information and belief, Defendants Adobe, Alcatel, IBM and Juniper have
in the past and continue to infringe, directly, indirectly, literally, under the doctrine of
9
equivalents, contributorily, and/or through the inducement of others, one or more of the claims of
the ‘049 Patent by making, using, importing, selling and/or offering to sell, in this judicial
district and elsewhere in the United States, software, appliances and services which are covered
by at least one caching method claim of the ‘049 Patent. Importing, selling and/or offering to
sell products and services which contribute to or induce the further making or using of said
caching method by others with knowledge of the ‘049 Patent further infringes the ‘049 Patent.
45. At a minimum, each of the following products and related services made, used,
sold and/or offered for sale by each of the Defendants Adobe, Alcatel, IBM, and Juniper
perform, when used for their intended purposes, the process for projecting an image of a stored
dataset from one network distributed cache site to another in response to a request to access such
dataset from a client site, including the process consisting of the steps described in one or more
claims of the ‘049 Patent, and are therefore infringing one or more claims of the '049 Patent:
a. Adobe Flash Memory Server;
b. Alcatel Velocix Digital Media Delivery Platform;
c. IBM WebSphere Extreme Scale solution and related Datapower XC10 appliance;
d. Juniper Media Flow Solution and related Media Flow Controllers;
46. By way of illustration only, upon information and belief, Adobe has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
multiple interconnected Adobe Flash Memory Servers. Such testing and demonstration
constitute use of said servers in ways that have performed the steps claimed in the ‘049 Patent.
47. By way of illustration only, upon information and belief, Alcatel has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the Velocix Digital Media Delivery Platform. Such testing and demonstration has included use
10
of said platform in ways that have performed the steps claimed in the ‘049 Patent.
48. By way of illustration only, upon information and belief, IBM has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the WebSphere Extreme Scale solution and related Datapower XC10 appliance. Such testing
and demonstration has included the use of said solution and said appliance in ways that have
performed the steps claimed in the ‘049 Patent.
49. By way of illustration only, upon information and belief, Juniper has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the Media Flow Solution and related Media Flow Controllers. Such testing and demonstration
has included the use of said solution and said controllers in ways that have performed the steps
claimed in the ‘049 Patent.
50. By way of illustration only, the aforesaid Defendants, with full knowledge of the
‘049 Patent, continues to provide online technical literature, user group support, and other forms
of technical support to other users of the aforesaid accused software solutions, platforms and
related appliances, assisting said users to perform the steps claimed in the ‘049 Patent.
51. By way of illustration only, the aforesaid Defendants, with full knowledge of the
‘049 Patent, continue to provide marketing and sales-related literature, relating to the aforesaid
accused software solutions, platforms and related appliances, encouraging said users to perform
the steps claimed in the ‘049 Patent.
52. As a consequence of the infringement of the ‘049 Patent by the aforesaid
Defendants, MOSAID is entitled to recovery of past damages in the form of, at a minimum, a
reasonable royalty.
11
COUNT IV – INFRINGEMENT OF U.S. PATENT NO. 6,205,475
53. MOSAID reasserts and incorporates herein by reference the allegations of all
preceding paragraphs of this Complaint as if fully set forth herein.
54. On March 20, 2001, U.S. Patent No. 6,205,475 (the “‘475 Patent”) was duly and
legally issued by the USPTO. MOSAID is the owner by assignment of all right, title and interest
in and to the ‘475 Patent, including all right to recover for any and all past infringement thereof.
The ‘475 Patent is attached hereto as “Exhibit 3,” and each of the Defendants has been aware of
the ‘475 Patent since at least as early as on or about August 2011, when each was served with the
summons and complaint in this case, and, upon information and belief, commenced investigation
into the patent portfolio at issue in this case.
55. Upon information and belief, Defendants Adobe, IBM, Juniper, and VMware
have in the past and continue to infringe, directly, indirectly, literally, under the doctrine of
equivalents, contributorily, and/or through the inducement of others, one or more of the claims of
the ‘475 Patent by making, using, importing, selling and/or offering to sell, in this judicial
district and elsewhere in the United States, data storage devices which are covered by at least one
claim of the ‘475 Patent. Importing, selling and/or offering to sell products which contribute to
or induce the further making or using of said infringing storage devices by others with
knowledge of the ‘475 Patent further infringes the ‘475 Patent.
56. At a minimum, each of the following data storage devices and/or networks made,
used, sold and/or offered for sale by each of the Defendants Adobe, Alcatel, IBM, Juniper, and
VMware perform, when used for their intended purposes, operates as a data storage network
including one or more devices for being disposed in a data transmission path between a
destination node and a data source, wherein the destination node is operable to request a data file
12
from the data source by directing a request for a data file along the data transmission path, and
further include each of the elements of at least one claim of the ‘475 Patent, and are therefore
infringing one or more claims of the '475 Patent:
a. Adobe Flash Memory Servers;
b. IBM WebSphere Extreme Scale solution and Websphere servers;
c. Juniper Media Flow Solution and Media Flow Controllers;
d. VMware vFabric GemFire Platform and VM Gemfire Peers.
57. As a consequence of the infringement of the ‘049 Patent by the aforesaid
Defendants, MOSAID is entitled to recovery of past damages in the form of, at a minimum, a
reasonable royalty.
COUNT V – INFRINGEMENT OF U.S. PATENT NO. 6,804,706
58. MOSAID reasserts and incorporates herein by reference the allegations of all
preceding paragraphs of this Complaint as if fully set forth herein.
59. On October 12, 2004, U.S. Patent No. 6,804,706 (the “‘706 Patent”) was duly and
legally issued by the USPTO. MOSAID is the owner by assignment of all right, title and interest
in and to the ‘706 Patent, including all right to recover for any and all past infringement thereof.
The ‘706 Patent is attached hereto as “Exhibit 4,” and each of the Defendants has been aware of
the ‘706 Patent since at least as early as on or about August 2011, when each was served with the
summons and complaint in this case, and, upon information and belief, commenced investigation
into the patent portfolio at issue in this case.
60. Upon information and belief, Defendant IBM has in the past and continue to
infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or
through the inducement of others, one or more of the claims of the ‘706 Patent by making, using,
13
importing, selling and/or offering to sell, in this judicial district and elsewhere in the United
States, software, appliances and services which are covered by at least one caching method claim
of the ‘706 Patent. Importing, selling and/or offering to sell products and services which
contribute to or induce the further making or using of said caching method by others with
knowledge of the ‘706 Patent further infringes the ‘706 Patent.
61. At a minimum, the IBM WebSphere Extreme Scale solution made, used, sold
and/or offered for sale by Defendant IBM performs, when used for their intended purposes, a
method for projecting an image of a stored dataset from a network distributed cache (“NDC”)
server terminator site into an NDC client terminator site in response to a request to access the
stored dataset transmitted from a client site to the NDC client terminator site, and for the client
site to overwrite at least a portion of the image of the stored dataset projected into the NDC client
terminator site, including the method consisting of the steps described in one or more claims of
the ‘706 Patent, and are therefore infringing one or more claims of the '706 Patent.
62. By way of illustration only, upon information and belief, IBM has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the WebSphere Extreme Scale solution and related Datapower XC10 appliance. Such testing
and demonstration has included the use of said solution and said appliance in ways that have
performed the steps claimed in the ‘706 Patent.
63. As a consequence of the infringement of the ‘706 Patent by the aforesaid
Defendants, MOSAID is entitled to recovery of past damages in the form of, at a minimum, a
reasonable royalty.
COUNT VI – INFRINGEMENT OF U.S. PATENT NO. 6,026,452
64. MOSAID reasserts and incorporates herein by reference the allegations of all
14
preceding paragraphs of this Complaint as if fully set forth herein.
65. On February 15, 2000, U.S. Patent No. 6,026,452 (the “‘452 Patent”) was duly
and legally issued by the USPTO. MOSAID is the owner by assignment of all right, title and
interest in and to the ‘452 Patent, including all right to recover for any and all past infringement
thereof. The ‘452 Patent is attached hereto as “Exhibit 5,” and each of the Defendants has been
aware of the ‘452 Patent since at least as early as on or about August 2011, when each was
served with the summons and complaint in this case, and, upon information and belief,
commenced investigation into the patent portfolio at issue in this case.
66. Upon information and belief, Defendant Red Hat has in the past and continue to
infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or
through the inducement of others, one or more of the claims of the ‘452 Patent by making, using,
importing, selling and/or offering to sell, in this judicial district and elsewhere in the United
States, software, appliances and services which are covered by at least one caching method claim
of the ‘452 Patent. Importing, selling and/or offering to sell products and services which
contribute to or induce the further making or using of said caching method by others with
knowledge of the ‘452 Patent further infringes the ‘452 Patent.
67. At a minimum, when used for its intended purpose, Red Hat’s JBoss Enterprise
Portal Platform and JBoss Enterprise Application Platform, each of which is made, used, sold
and/or offered for sale by Red Hat, performs, performs a method for caching in the RAM of a
digital computer system an image of a portion of data stored in a dataset that the computer
system can access in response to a request to access such data, including the steps described in
one or more claims of the ‘452 Patent, and are therefore infringing one or more claims of the
'452 Patent.
15
68. By way of illustration only, upon information and belief, Red Hat has tested,
demonstrated and developed true and accurate technical literature relating to the deployment of
the JBoss Enterprise Portal Platform and JBoss Enterprise Application Platform. Such testing
and demonstration has included the use of said solution and said appliance in ways that have
performed the steps claimed in the ‘452 Patent.
69. As a consequence of the infringement of the ‘452 Patent by the aforesaid
Defendants, MOSAID is entitled to recovery of past damages in the form of, at a minimum, a
reasonable royalty.
PRAYER FOR RELIEF
WHEREFORE, MOSAID prays for entry of judgment and an order that:
(1) Defendants have infringed one or more of the claims of the ‘914 Patent, ‘049
Patent, ‘475 Patent, 706 Patent and/or the ‘452 Patent (collectively, the “Asserted Patents”),
either literally and/or under the doctrine of equivalents;
(2) Defendants account for and pay to MOSAID all damages, assessment of interest,
and costs of MOSAID caused by Defendants’ patent infringement of the Asserted Patents;
(3) MOSAID be granted permanent injunctive relief pursuant to 35 U.S.C. § 283
enjoining Defendants, their officers, agents, servants, employees, affiliates and those persons in
active concert of participation with them from further acts of patent infringement of the Asserted
Patents;
(4) In the event the Court determines that it will not enter injunctive relief,
Defendants continue to pay royalties to MOSAID for its infringement of the Asserted Patents on
a going-forward basis;
16
(5) Defendants account for and pay for increased damages for willful infringement
under 35 U.S.C. § 284;
(6) Costs and attorney’s fees be awarded to MOSAID, as this is an exceptional case
under 35 U.S.C. § 285; and
(7) MOSAID be granted such further and additional relief as the Court may deem just
and proper under the circumstances.
DEMAND FOR JURY TRIAL
MOSAID demands trial by jury on all claims and issues so triable.
November 11, 2011
OF COUNSEL:
Steven G. Hill
Douglas R. Kertscher
HILL, KERTSCHER & WHARTON, LLP
[address telephone]
BAYARD, P.A.
/s/ Stephen B. Brauerman
Richard D. Kirk (rk0922)
Stephen B. Brauerman (sb4952)
[address email telephone]
Attorneys for Plaintiff Mosaid
Technologies Inc.
17
39
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOSAID TECHNOLOGIES INC.,
Plaintiff,
v.
ADOBE SYSTEMS, INC., ALCATEL-
LUCENT USA, INC., APPLE, INC.,
INTERNATIONAL BUSINESS MACHINES
CORP, JUNIPER NETWORKS, INC.,
NETAPP, INC., RED HAT, INC., AND
VMWARE, INC.
Defendants.
C.A. No.: 11-698-GMS
JURY TRIAL DEMANDED
____________________________________
PLAINTIFF’S MOTION FOR LEAVE TO AMEND
Plaintiff MOSAID Technologies Inc. (“MOSAID”), by and through its undersigned
counsel, hereby respectfully moves pursuant to Rule 15(a) of the Federal Rules of Civil
Procedure to file a Second Amended Complaint for Patent Infringement against the above-named
Defendants. The docket indicates that the Defendants have not filed any responsive pleadings in
this action, that no Scheduling Order has been entered, and that no prejudice will result from the
proposed amendment. The grounds for this Motion are more fully set forth in the accompanying
Opening Brief filed contemporaneously herewith.
December 12, 2011
OF COUNSEL:
Steven G. Hill
Douglas R. Kertscher
HILL, KERTSCHER & WHARTON, LLP
[address telephone]
BAYARD, P.A.
/s/ Stephen B. Brauerman
Richard D. Kirk (rk0922)
Stephen B. Brauerman (sb4952)
[address email telephone]
Attorneys for Mosaid Technologies Inc.
40
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOSAID TECHNOLOGIES INC.,
Plaintiff,
v.
ADOBE SYSTEMS, INC., ALCATEL-
LUCENT USA, INC., APPLE, INC.,
INTERNATIONAL BUSINESS MACHINES
CORP, JUNIPER NETWORKS, INC., RED
HAT, INC., AND VMWARE, INC.
Defendants.
C.A. No.: 11-698-GMS
JURY TRIAL DEMANDED
______________________________________
OPENING BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO AMEND
December 12, 2011
OF COUNSEL:
Steven G. Hill
Douglas R. Kertscher
HILL, KERTSCHER & WHARTON, LLP
[address telephone]
BAYARD, P.A.
Richard D. Kirk (rk0922)
Stephen B. Brauerman (sb4952)
[address email telephone]
Attorneys for Plaintiff Mosaid
Technologies Inc.
TABLE OF CONTENTS
Page
I. NATURE AND STAGE OF PROCEEDINGS AND STATEMENT OF FACTS ...... 4
II. SUMMARY OF ARGUMENT ...... 5
III. ARGUMENT ...... 5
IV. CONCLUSION ...... 7
2
TABLE OF AUTHORITIES
Page(s)
CASES
Dole v. Arco Chemical Co.,
921 F.2d 484 (3d Cir. 1990) ...... 5, 6
Foman v. Davis,
371 U.S. 178, 9 L. Ed. 222, 83 S. Ct. 227 (1963) ...... 6
Jackson v. Taylor,
2010 U.S. Dist. LEXIS 76573 (D. Del. 2010) ...... 6
Sulzer Testil A.G. v. Picanol N.V.,
358 F.3d 1356 (Fed. Cir. 2004) ...... 5
OTHER AUTHORITIES
District of Delaware Local Rule 15.1 ...... 4
Federal Rule of Civil Procedure 15(a) ...... 5, 6, 7
Federal Rule of Civil Procedure 16 ...... 6
Federal Rule of Civil Procedure 26 ...... 6
3
I. NATURE AND STAGE OF PROCEEDINGS AND STATEMENT OF FACTS
This is an action for patent infringement. Plaintiff filed the within action on August 9,
2011 (See D.I. No. 1 [Plaintiff’s Complaint for Patent Infringement]), and filed a First Amended
Complaint on October 6, 2011 (See D.I. No. 16 [Plaintiff’s First Amended Complaint for Patent
Infringement]). The First Amended Complaint was filed in part to withdraw allegations of
infringement of one particular patent, and to dismiss one particular defendant, in light of
information that the Defendants’ counsel shared with Plaintiff’s counsel. The First Amended
Complaint alleged that Defendants’ accused products and related processes (hereinafter “accused
products”) set forth in the original complaint project images from network distributed cache sites
in a manner that infringes one or more claims of the ‘914 patent. (Id.). Plaintiff consented to
extensions of time for each Defendant to file a responsive pleading; therefore, none of the
Defendants has filed an Answer at this time to the Complaint or the First Amended Complaint.
Plaintiff now files the present Motion seeking leave to file a Second Amended Complaint
(filed November 11, 2011 as D.I. No.33) to add additional infringement allegations relating to
the same accused products that are already in the case; based upon Plaintiff’s continuing
investigation of these products. These additional allegations arise out the fact that these accused
products also are also believed to infringe additional patents which are related to the ‘914 patent.
No new parties (or even new products for that matter) are sought to be added by this proposed
amendment.1 When Plaintiff realized that it had grounds to assert these additional patents
against the same accused products as those set forth in the First Amended Complaint, it prepared
the Second Amended Complaint, which was filed with the Court and served upon all parties on
_____________________________________
1 In accordance with Local Rule 15.1, the Second Amended Complaint is attached to the Motion
for Leave as Exhibit “A” and a form of the Second Amended Complaint indicating the manner in
which it differs from the First Amended Complaint is attached as Exhibit “B.”
4
November 11, 2011, to give Defendants and the Court prompt notice of these additional
infringement claims. Plaintiff has attempted to obtain Defendants’ consent to the filing of the
Second Amended Complaint, but Defendants have refused to consent, or to offer any basis for
this refusal, making the instant motion necessary.2
As stated, Plaintiff has sought Defendants’ consent to a stipulation relating to the
November 11, 2011 filing of the Second Amended Complaint in the hopes of avoiding the need
to trouble this Court with early procedural motion practice of this sort, but thus far only
Defendant VMWare, Inc. indicated consent. Plaintiff has formally requested information about
the other defendants’ positions relating to this matter, but no defendant has explained why it will
not consent to the proposed amendment to the pleadings.
II. SUMMARY OF ARGUMENT
This case is relatively near its inception, as Defendants have not yet filed a responsive
pleading. The Third Circuit,3 in applying Rule 15(a), liberally allows amendments unless to do
so would prejudice a nonmoving party. See, e.g., Dole v. Arco Chemical Co., 921 F.2d 484 (3d
Cir. 1990). Allowing amendment at this early stage will cause no prejudice to the Defendants;
therefore, the Court should allow the Second Amended Complaint.
III. ARGUMENT
Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading with
the opposing party’s written consent or with the leave of Court. Plaintiff has been unable to
____________________________________
2
A chronology of Plaintiff’s attempts to obtain Defendants’ consent to the filing of the Second
Amended Complaint is attached as Exhibit “C”.
3
In matters of procedure, the Federal Circuit applies the law of the regional circuit in which the
district court lies, unless the pertinent issue is unique to patent law. See Sulzer Testil A.G. v.
Picanol N.V., 358 F.3d 1356, 1363 (Fed. Cir. 2004).
5
secure the consent of all Defendants to amend the Complaint; therefore, Plaintiff has filed the
present Motion.
Rule 15(a) also states that “[t]he court should freely give leave when justice so requires.”
The Third Circuit has followed this mandate, adopting a policy of liberally allowing amendment
unless certain extraordinary circumstances exist. See Dole v. Arco Chemical Co., 921 F.2d 484,
487 (3d Cir. 1990) (noting that the Third Circuit uses “strong liberality” in determining whether
amendment should be permitted).
Leave to amend is properly denied only when there is “undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility
of amendment, etc.” Id. (citing Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 222, 83 S. Ct. 227
(1963)). Absent a showing of one of these circumstances, leave to amend should ordinarily be
allowed. Jackson v. Taylor, 2010 U.S. Dist. LEXIS 76573 (D. Del. 2010).
The primary consideration in determining whether to allow amendment is whether the
amendment will prejudice the nonmoving party. Dole, 921 F.2d at 488. “A mere claim of
prejudice is not sufficient; there must be some showing that [the nonmoving party] ‘was unfairly
disadvantaged or deprived of the opportunity to present facts or evidence which it would have
offered had the . . . amendments been timely.’” Id.
In the present case, allowing an amendment will cause no conceivable prejudice to the
Defendants. In fact, Defendants have not even filed response to the prior Complaints, as Plaintiff
agreed, with the approval of the Court, to extend the deadline to file responsive pleadings. The
parties have not conducted any Rule 26 conferences, the Court has not held a Rule 16
conference, and no scheduling order has been entered or discussed. Most recently, after the
6
Second Amended Complaint was filed on November 11, 2011, the time for responsive pleadings
was extended, by stipulation, through and including December 23, 2011. (D.I. 37.). During that
time, Plaintiff hoped that all Defendants would agree to consent to the filing of the Second
Amended Complaint; however, not all Defendants have so consented. Under these
circumstances, pursuant to the language of Rule 15(a) and the Third Circuit’s policy in favor of
liberally allowing amendments when no prejudice will result, Plaintiff’s Motion for Leave to
Amend should be granted.
IV. CONCLUSION
For the foregoing reasons, Plaintiff asks that its Motion for Leave to Amend be granted,
and that Plaintiff’s Second Amended Complaint, filed November 11, 2011, to be filed nunc pro
tunc as a matter of record in these proceedings with said leave.
December 12, 2011
OF COUNSEL:
Steven G. Hill
Douglas R. Kertscher
HILL, KERTSCHER & WHARTON, LLP
[address telephone]
BAYARD, P.A.
/s/ Stephen B. Brauerman
Richard D. Kirk (rk0922)
Stephen B. Brauerman (sb4952)
[address email telephone]
Attorneys for Plaintiff Mosaid
Technologies Inc.
7
48
FOR THE DISTRICT OF DELAWARE
MOSAID TECHNOLOGIES, INC.
Plaintiff,
v.
ADOBE SYSTEMS, INC., ALCATEL-
LUCENT USA, INC., INTERNATIONAL
BUSINESS MACHINES CORP., JUNIPER
NETWORKS, INC., RED HAT, INC.,
AND VMWARE, INC.,
Defendants.
C.A. No. 11-698-GMS
____________________________________
DEFENDANT RED HAT INC.’S MOTION TO DISMISS, IN PART,
COUNT II OF PLAINTIFF’S FIRST AMENDED COMPLAINT
PURSUANT TO FED. R. CIV. P. 12(b)(6) FOR FAILURE TO STATE A CLAIM
Defendant Red Hat, Inc. (“Red Hat”) hereby moves for dismissal, in part, of Count II of
Plaintiff MOSAID Technologies, Inc.’s (“MOSAID”) First Amended Complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Specifically,
Red Hat moves to dismiss those portions of Paragraph 22 of the First Amended Complaint which
are directed to inducement of infringement or contributory infringement, and Paragraph (5) of
the First Amended Complaint’s Prayer for Relief. Red Hat’s Motion is based on the reasons
outlined in its Opening Brief in Support of its Motion to Dismiss, in Part, Count II of Plaintiff’s
First Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim, filed
contemporaneously herewith, on the pleadings of record in this action, and on such further
evidence and argument as the Court may receive prior to its decision on this Motion.
Dated: December 23, 2011
FISH & RICHARDSON P.C.
By: /s/ Gregory R. Booker
Tara D. Elliott (#4483)
Gregory R. Booker (#4784)
Fish & Richardson P.C.
[address telephone email]
Katherine Kelly Lutton
Shelley K. Mack
Fish & Richardson P.C.
[address telephone]
Attorneys for Defendant
RED HAT, INC.
2
49
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOSAID TECHNOLOGIES, INC.
Plaintiff,
v.
ADOBE SYSTEMS, INC., ALCATEL-
LUCENT USA, INC., INTERNATIONAL
BUSINESS MACHINES CORP., JUNIPER
NETWORKS, INC., RED HAT, INC.,
AND VMWARE, INC.,
Defendants.
C.A. No. 11-698-GMS
_________________________________
DEFENDANT RED HAT, INC.’S OPENING BRIEF IN SUPPORT OF MOTION TO
DISMISS IN PART COUNT II OF PLAINTIFF’S FIRST AMENDED COMPLAINT
PURSUANT TO FED. R. CIV. P. 12(b)(6) FOR FAILURE TO STATE A CLAIM
Tara D. Elliott (#4483)
Gregory R. Booker (#4784)
Fish & Richardson P.C.
[address telephone email]
Katherine Kelly Lutton
Shelley Mack
Fish & Richardson P.C.
[address telephone]
TABLE OF CONTENTS
Page(s)
I. NATURE AND STAGE OF PROCEEDINGS ...... 1
II. SUMMARY OF ARGUMENT ...... 1
III. STATEMENT OF FACTS ...... 4
IV. ARGUMENT ...... 5
A. Legal Standards Governing Indirect and Willful
Infringement Pleadings ...... 7
B. MOSAID’s Request for Increased Damages for Willful
Infringement Should Be Dismissed Because It Is
Entirely Devoid of Content ...... 8
C. MOSAID’s Inducement Claim Should Be Dismissed for
Failure to State Facts Identifying Any Alleged Direct
Infringer or Supporting an Allegation of Knowledge or
Specific Intent ...... 10
D. MOSAID’s Contributory Infringement Claim Should Be
Dismissed for Failure to Allege Facts Identifying a
Direct Infringer, Showing the Requisite Knowledge or
Specific Intent, or Identifying a Component Meeting the
Requirements of Section 271(c) ...... 12
V. CONCLUSION ...... 14
i
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
ACCO Brands, Inc. v. ABA Locks Mfr. Co.,
501 F.3d 1307 (Fed. Cir. 2007) ...... 3, 10
Aro Mfg. Co. v. Convertible Top Replacement Co.,
377 U.S. 476 (1964) ...... 3, 11, 13
Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937 (2009) ...... 1, 6, 7, 10
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ...... passim
Bell Helicopter Textron Inc. v. American Eurocopter, LLC,
729 F. Supp. 2d 789 (N.D. Tex. 2010) ...... 9
BMC Res., Inc. v. Paymentech, L.P.,
498 F.3d 1373 (Fed. Cir. 2007) ...... 3, 10, 13
Cal. Institute of Computer Assisted Surgery, Inc. v. Med-Surgical Services, Inc.,
No. 10-02042 CW, 2010 WL 3063132 ...... 8
Dynacore Holdings Corp. v. U.S. Philips Corp.,
363 F.3d 1263 (Fed. Cir. 2004) ...... 3, 10
EON Corp. IP Holdings LLC v. FLO TV Inc.,
Civ. No. 10-812-SLR, 2011 WL 2708945 ...... passim
Global-Tech Appliances, Inc. v. SEB S.A.,
131 S. Ct. 2060 (2011) ...... 2, 10
In re Seagate Technology, LLC,
497 F.3d 1360 (Fed. Cir. 2007) (en banc) ...... 2, 8
IPVenture, Inc. v. Cellco Partnership,
No. C 10-04755 JSW, 2011 WL 207978 ...... 9
Item Development AB v. Sicor Inc.,
No. Civ. 05-336-SLR, 2006 WL 891032 (D. Del. March 31, 2006) ...... 2, 9
ii
TABLE OF AUTHORITIES (cont’d)
Page(s)
Joy Techs, Inc. v. Flakt, Inc.,
6 F.3d 770 (Fed. Cir. 1993) ...... 11
Mallinckrodt, Inc. v. E-Z-Em Inc.,
670 F. Supp. 2d 349 (D. Del. 2009) ...... passim
Novartis Pharm. Corp. v. Eon Labs Mfg., Inc.,
363 F.3d 1306 (Fed. Cir. 2004) ...... 3, 10
Tech. Licensing Corp. v. Technicolor USA, Inc.,
No. 2:03-1329 WBS EFB, 2010 WL 4070208 (E.D. Cal. Oct. 18, 2010) ...... 8
FEDERAL: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS
35 U.S.C. § 271(b) ...... 2, 10
35 U.S.C. § 271(c) ...... 3, 12, 13
35 U.S.C. § 284 ...... 9
Fed. R. Civ. P. 8(a)(2) ...... 1
Fed. R. Civ. P. 11(b) ...... 8
Fed. R. Civ. P. 12(b)(6) ...... 1
iii
I. NATURE AND STAGE OF PROCEEDINGS
This is a patent infringement action filed by Plaintiff MOSAID Technologies Inc.
(“MOSAID”) against Defendants Adobe Systems, Inc. (“Adobe”), Alcatel-Lucent USA, Inc.
(“Alcatel”), International Business Machines Corp. (“IBM”), Juniper Networks, Inc. (“Juniper”),
Red Hat, Inc. (“Red Hat”), and VMware, Inc. (“VMware”) (collectively, “Defendants”).
MOSAID filed its original complaint on August 9, 2011, and its First Amended Complaint on
October 6, 2011. Defendants’ response to MOSAID’s First Amended Complaint is due on
December 23, 2011. Though MOSAID has moved to file a Second Amended Complaint and
moot the First Amended Complaint, MOSAID refused to agree to extend the deadline to Answer
the First Amended Complaint until the Court determines which complaint is operable.
Defendants have not filed an answer to MOSAID’s First Amended Complaint, and no case
management conference has been scheduled.
II. SUMMARY OF ARGUMENT
1. Rule 8 of the Federal Rules of Civil Procedure requires MOSAID to plead
specific facts to state a claim for indirect and willful infringement that is “plausible” on its face.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009).
2. Fed. R. Civ. P. 8(a)(2) calls for a “short and plain statement of the claim showing
that the pleader is entitled to relief,” and requires that the accused infringer be given “fair notice
of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555-56
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
3. If a complaint fails to satisfy the pleading requirements of Rule 8, it “must be
dismissed” under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Id. at 570.
1
4. To satisfy the requirements of Rule 8, claims of willful and indirect infringement
require more than conclusory allegations. See EON Corp. IP Holdings LLC v. FLO TV Inc., Civ.
No. 10-812-SLR, 2011 WL 2708945, at **3-4 (D. Del. July 12, 2011); Mallinckrodt, Inc. v. E-ZEm
Inc., 670 F. Supp. 2d 349, 354 (D. Del. 2009); Item Development AB v. Sicor Inc., No. Civ.
05-336-SLR, 2006 WL 891032, at *2 (D. Del. March 31, 2006).
5. To establish willful infringement, a plaintiff must demonstrate infringement, as
well as the following additional elements: (1) that there was an objectively high likelihood that
the defendant’s activities constituted infringement of a valid patent, and (2) either that the
defendant subjectively knew of the risk of infringement, or that the risk of infringement was so
obvious the defendant should have known of that risk. See In re Seagate Technology, LLC, 497
F.3d 1360, 1371 (Fed. Cir. 2007) (en banc).
6. MOSAID’s claim against Red Hat for willful infringement of the ’914 patent – to
the extent such a claim can be understood to exist – fails to comply with the pleading
requirements of Rule 8. The First Amended Complaint omits any mention of or facts supporting
willful infringement from its specific pleadings, and instead simply requests in the Prayer for
Relief that all Defendants be held to account for increased damages for willful infringement.
(D.I. 16 at 9.) It does not allege any facts to support the boilerplate statement that Red Hat was
aware of the ’914 patent, nor does it allege an objectively high likelihood that Red Hat’s
activities constituted infringement of a valid patent. Likewise, the First Amended Complaint
does not allege that Red Hat was subjectively aware of the risk of infringing the ’914 patent, or
that such a risk was so obvious that Red Hat should have been aware of it. As a result,
MOSAID’s willful infringement claim against Red Hat must be dismissed.
2
7. To prove inducement of infringement, a plaintiff must establish that some third
party committed the entire act of direct infringement, and show that the defendant knew of the
patent, knowingly induced its infringement and possessed specific intent to encourage it. 35
U.S.C. § 271(b); see Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2067-68 (2011);
BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373, 1379 (Fed. Cir. 2007); Novartis Pharm.
Corp. v. Eon Labs Mfg., Inc., 363 F.3d 1306, 1308 (Fed. Cir. 2004); ACCO Brands, Inc. v. ABA
Locks Mfr. Co., 501 F.3d 1307, 1312 (Fed. Cir. 2007); Dynacore Holdings Corp. v. U.S. Philips
Corp., 363 F.3d 1263, 1273 (Fed. Cir. 2004); EON Corp. 2011 WL 2708945 at *3; Mallinckrodt,
670 F. Supp. 2d at 354.
8. MOSAID’s claim against Red Hat for inducing infringement of the ’914 patent
also fails to comply with the pleading requirements of Rule 8. The First Amended Complaint
fails to allege that any third party was induced to directly infringe the ’914 patent, or to identify
any such directly infringing third party. (D.I. 16 at ¶ 22.) The First Amended Complaint also
fails to allege any facts supporting the boilerplate assertion that Red Hat knew of the ’914 patent,
and fails to allege that Red Hat had knowledge of any alleged direct infringement by a third party
or the specific intent to cause any third party to infringe. (Id.) As a result, MOSAID’s claim
against Red Hat for inducing infringement of the ’914 patent must be dismissed.
9. To prove contributory infringement, a plaintiff must show that a third party
committed the entire act of direct infringement, and that the defendant offered to sell or sold a
“component of a patented machine . . . constituting a material part of the invention, knowing the
same to be especially made or especially adapted for use in an infringement of such patent . . . .”
35 U.S.C. § 271(c) (emphasis added); BMC Res., 498 F. 3d at 1381; see also Aro Mfg. Co. v.
3
Convertible Top Replacement Co., 377 U.S. 476, 488 (1964); EON Corp., 2011 WL 2708945, at
*4; Mallinckrodt, 670 F. Supp. 2d at 354-55.
10. MOSAID’s claim against Red Hat for contributory infringement of the ’914
patent similarly fails to comply with the pleading requirements of Rule 8. The First Amended
Complaint fails to identify the component alleged to not be a staple part of commerce, or which
third parties used that unspecified component to directly infringe the ’914 patent. (D.I. 16 at ¶
22.) The First Amended Complaint also fails to allege Red Hat had knowledge of any third
party’s direct infringement of the patent-in-suit. As a result, MOSAID’s claim against Red Hat
for contributory infringement also must be dismissed.
III. STATEMENT OF FACTS
MOSAID filed its original Complaint on August 9, 2011, accusing seven unrelated
parties – Adobe, Alcatel, IBM, NetApp, Juniper, Red Hat, and VMware – of infringing two
patents related to network distributed caching: U.S. Patent Nos. 5,892,914 (“the ’914 patent”)
and 6,505,241 (“the ’241 patent”). (D.I. 1.) MOSAID alleged that six of the defendants –
Adobe, Alcatel, IBM, Juniper, NetApp, and VMware – infringed the ’241 patent, and that only
one – Red Hat – infringed the ’914 patent. (Id.) The ’241 patent, however, was previously
disclaimed and dedicated to the public.
After the defendants brought this disclaimer to MOSAID’s attention, on October 6, 2011,
MOSAID filed its First Amended Complaint (1) dropping NetApp as a defendant, (2)
withdrawing its infringement claims under the ’241 patent, and (3) alleging that all six remaining
defendants infringed the remaining patent-in-suit (the ’914 patent).1
(D.I. 16.) The First
__________________________________
1
On November 11, 2011, without seeking permission from any defendant or leave to amend
from this Court, MOSAID improperly filed a Second Amended Complaint. (D.I. 33.) A month
later, on December 12, 2011, MOSAID filed a motion for leave to file its Second Amended
Complaint. (D.I. 40.)
4
Amended Complaint contains a single count of patent infringement and combines its allegations
against Red Hat for direct and indirect infringement of the ’914 patent into a single paragraph
that reads, in its entirety:
22. Upon information and belief, Defendant RedHat has in the
past and continues to infringe, directly, indirectly, literally, under
the doctrine of equivalents, contributorily, and/or through the
inducement of others, one or more of the claims of the ‘914
Patent by making and using in this judicial district and elsewhere
in the United States, a caching method which infringes at least
one claim of the ‘914 Patent. Importing, selling and/or offering to
sell products and services which contribute to or induce the
further making or using of said caching method by others with
knowledge of the ‘914 Patent further infringes the ‘914 Patent.
(Id. at ¶ 22.)
MOSAID’s allegation of willful infringement – to the extent it is alleged at all – is
present nowhere in the causes of action themselves, but only appears in the Prayer for Relief in a
single sentence that reads, in its entirety:
(5) Defendants account for and pay for increased damages for
willful infringement under 35 U.S.C. § 284.
(Id. at 9.)
IV. ARGUMENT
MOSAID provides no facts supporting its allegations of inducement of infringement,
contributory infringement, or willfulness. Instead, its First Amended Complaint merely recites
generalized conclusions that Red Hat induces and/or contributorily infringes the ’914 patent, and
requests damages for willful infringement in its Prayer for Relief without providing any
allegations supporting a willfulness claim. MOSAID’s First Amended Complaint is devoid of
even the most basic facts to support its indirect and willfulness allegations, and thus fails to state
claims for willful or indirect infringement compliant with the requirements of Rule 8.
5
With respect to willfulness, for instance, the First Amended Complaint fails to plead any
facts to support the boilerplate assertion that Red Hat was aware of the ’914 patent, nor does it
allege an objectively high likelihood existed that Red Hat’s activities constituted infringement of
a valid patent. The First Amended Complaint also lacks any allegation that Red Hat subjectively
knew of the risk of infringing the ’914 patent, or that the risk of infringement was so obvious that
Red Hat should have known of it. With respect to inducement, MOSAID fails to identify or
allege that any third party was induced to infringe the asserted patents, fails to allege any facts to
support the boilerplate assertion that Red Hat knew of the ’914 patent, and fails to allege that
Red Hat had knowledge of the alleged infringement or the specific intent to cause any third party
to infringe. As to contributory infringement, the First Amended Complaint fails to identify the
component alleged to not be a staple part of commerce or which third parties used the
unspecified component to infringe the patents, and fails to allege that Red Hat had knowledge of
any alleged infringement. Instead, MOSAID recites boilerplate generalities and legal
conclusions to plead willfulness, contributory infringement and inducement. This is precisely
the approach held impermissible in the recent Supreme Court decisions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which underscore
that a complaint must allege sufficient facts to establish a plausible claim, and that recitations of
bare, conclusory allegations are insufficient to state a claim under the Federal Rules.
Before a case of this magnitude and expense proceeds, MOSAID is required at least to
identify sufficient facts to state a plausible claim for relief, and to provide Red Hat with
sufficient notice of its allegations to allow Red Hat to mount an appropriate defense. If
MOSAID has complied with its pre-filing due diligence obligations, it already should know the
identities of purported third-party infringers, know the identity of the components that allegedly
6
are not staples of commerce, and have evidence establishing the requisite knowledge and intent
to support its indirect infringement and willfulness claims. But without having so pled, even on
information and belief, MOSAID’s allegations of indirect and willful infringement are deficient
on their face and should be dismissed.
A. Legal Standards Governing Indirect and Willful Infringement Pleadings
The Supreme Court’s decisions in Twombly and Iqbal ended the practice of pleading
boilerplate and conclusory allegations tolerated under Conley – a practice that allowed dismissal
of a complaint only where “it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Twombly, 550 U.S. at 561-63. Now, to
survive a motion to dismiss, a plaintiff must plead facts sufficient “to state a claim to relief that is
plausible on its face.” Id. at 570 (emphasis added). As the Supreme Court ruled in Twombly:
Without some factual allegation in the complaint, it is hard to see how a
claimant could satisfy the requirement of providing not only ‘fair
notice’ of the nature of the claim, but also ‘grounds’ on which the claim
rests. . . . Rule 8(a) “contemplate[s] the statement of circumstances,
occurrences, and events in support of the claim presented’ and does not
authorize a pleader’s ‘bare averment that he wants relief and is entitled
to it.’”
Id. at 555 n.3 (citing 5 Wright & Miller, Federal Practice and Procedure § 1202, pp. 94 & 95
(3d ed. 2004)).
The Supreme Court in Iqbal clarified that the plausibility standard set forth in Twombly
applies in all civil actions. Iqbal, 129 S. Ct. at 1953. The Court re-emphasized in Iqbal that
“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at
1950. To comply with Rule 8, therefore, a plaintiff must plead “more than an unadorned, the
defendant-unlawfully-harmed-me accusation.” Id. at 1949. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A pleading
7
that contains mere “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action will not do.” Id. (quoting Twombly, 550 U.S. at 555).
In the patent infringement context, allegations of indirect infringement require more than
conclusory allegations. See EON Corp., 2011 WL 2708945, at **3-4 (complaint contained
insufficient facts to allow the court to infer defendants had knowledge of the asserted patent);
Mallinckrodt, 670 F. Supp. 2d at 354 (dismissing indirect infringement claim where complaint
failed to sufficiently plead defendants had knowledge of the asserted patent); see also Tech.
Licensing Corp. v. Technicolor USA, Inc., No. 2:03-1329 WBS EFB, 2010 WL 4070208, at *2
(E.D. Cal. Oct. 18, 2010) (finding that allegations of indirect infringement require more than a
mere recitation of statutory language even if direct infringement does not); Cal. Institute of
Computer Assisted Surgery, Inc. v. Med-Surgical Services, Inc., No. 10-02042 CW, 2010 WL
3063132, at **1-2 (N.D. Cal. Aug. 3, 2010) (dismissing complaint that “complaint merely
reiterates the bare elements of patent infringement”).
B. MOSAID’s Request for Increased Damages for Willful Infringement Should
Be Dismissed Because It Is Entirely Devoid of Content
It is unclear as to whether or not MOSAID actually intended to plead willful infringement
in its First Amended Complaint. The only indication of a willfulness allegation appears in the
Prayer for Relief without any basis to support MOSAID’s request for increased damages. Thus,
any alleged claim for willful infringement (to the extent the First Amended Complaint can be
understood to assert such a claim) should be dismissed for failing to comply with Rule 8.
To establish willful infringement, a plaintiff must demonstrate infringement, as well as
(1) that there was an objectively high likelihood that the defendant’s activities constituted
infringement of a valid patent, and (2) either that the defendant subjectively knew of the risk of
8
infringement, or that the risk of infringement was so obvious the defendant should have known
of it. See In re Seagate, 497 F.3d at 1371.
At the pleading stage, MOSAID at a minimum must allege the facts forming the basis of
a good faith belief that its claim of willful infringement has evidentiary support. See id. at 1374
(“[W]hen a complaint is filed, a patentee must have a good faith basis for alleging willful
infringement.” (citing Fed. R. Civ. P. 8(a), 11(b))). Here, MOSAID does not even attempt to
make the necessary factual allegations to show willful infringement. Instead, its entire
willfulness allegation consists of the following request for increased damages in its Prayer for
Relief without any supporting details: “Defendants account for and pay for increased damages
for willful infringement under 35 U.S.C. § 284.” (D.I. 16 at 9.)
Nowhere in the First Amended Complaint does MOSAID allege any facts to show that
there was an objectively high likelihood that Red Hat’s activities constituted infringement of a
valid patent, or that Red Hat either knew or should have known of the risk of infringement. Any
claim of willful infringement should therefore be dismissed. See Item Development, 2006 WL
891032, at *2 (finding that plaintiff has not offered any support for a finding of willful
infringement and dismissing those allegations); see also Bell Helicopter Textron Inc. v. American
Eurocopter, LLC, 729 F. Supp. 2d 789, 800 (N.D. Tex. 2010) (dismissing willful infringement
allegations where plaintiff made only conclusory allegations); IPVenture, Inc. v. Cellco
Partnership, No. C 10-04755 JSW, 2011 WL 207978, at **2-3 (N.D. Cal. January 21, 2011)
(dismissing willful infringement claim for failure to plead facts to support the claim that
defendants had actual knowledge of the asserted patent).
9
C. MOSAID’s Inducement Claim Should Be Dismissed for Failure to State
Facts Identifying Any Alleged Direct Infringer or Supporting an Allegation
of Knowledge or Specific Intent
MOSAID’s entire claim against Red Hat for inducement of infringement consists of the
following allegations:
Upon information and belief, Defendant Red Hat has in the past and continues to
infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily,
and/or through the inducement of others, one or more of the claims of the ‘914 Patent
by making and using in this judicial district and elsewhere in the United States, a caching
method which infringes at least one claim of the ‘914 Patent. Importing, selling and/or
offering to sell products and services which contribute to or induce the further making or
using of said caching method by others with knowledge of the ‘914 Patent further
infringes the ‘914 Patent.
(D.I. 16 at ¶ 22 (emphasis added).) These boilerplate and conclusory allegations fail to meet the
threshold Rule 8 pleading standard as clarified by Twombly and Iqbal. MOSAID’s First
Amended Complaint fails to allege facts that support any element of a claim for inducement of
infringement. Because the First Amended Complaint fails “to state a claim to relief that is
plausible on its face,” Twombly, 550 U.S. at 570, MOSAID’s inducement claim should be
dismissed.
As an initial matter, tolerance of factual contentions specifically identified as made on
information and belief does not relieve the plaintiff of its obligation to conduct an appropriate
Rule 11 investigation. Nor is it a license to make claims without any factual basis. Before
MOSAID is permitted discovery as to Red Hat’s alleged inducement, it must allege facts
sufficient to show its claim is at least plausible. See Iqbal, 129 S. Ct. at 1950 (“Rule 8 . . . does
not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).
MOSAID should not be permitted to engage in a fishing expedition absent even the bare
allegations to support an inducement claim.
To prove inducement of infringement under 35 U.S.C. § 271(b), a plaintiff must establish
10
that some third party committed the entire act of direct infringement. See BMC Res., 498 F.3d at
1379; Novartis Pharm. Corp., 363 F.3d at 1308; EON Corp., 2011 WL 2708945, at *3 (D. Del.
July 12, 2011); Mallinckrodt, 670 F. Supp. 2d at 354. A plaintiff also must show that the
defendant knowingly induced that infringement and possessed specific intent to encourage it. See
Global-Tech Appliances, 131 S. Ct. at 2067-68; ACCO Brands, 501 F.3d at 1312; Dynacore
Holdings, 363 F.3d at 1273; EON Corp. 2011 WL 2708945, at *3; Mallinckrodt, 670 F. Supp. 2d
at 354.
Here, MOSAID’s First Amended Complaint is devoid of any allegations establishing the
critical elements of its inducement claim. While MOSAID alleges that Red Hat provides
“marketing and sales-related literature,” “online technical literature, user group support, and
other forms of technical support” in order to assist or encourage users “to perform the steps
claimed in the ‘914 patent” (D.I. 16 at ¶¶ 34-35), these statements are unhelpful to determine
whether the First Amended Complaint states a plausible claim of inducement. Relying only on
nebulous references to “others” or “users,” MOSAID does not identify any specific third party
which Red Hat allegedly induced to infringe, and fails to allege any facts to show direct
infringement of the ’914 patent by any third party.2
Further, MOSAID fails to allege that Red Hat had the requisite knowledge to support a
claim for inducing infringement. Although MOSAID includes the boilerplate statement that Red
Hat had “full knowledge of the ‘914 Patent” (D.I. 16 at ¶¶ 34-35), there are no supporting facts
_________________________________
2
It is black-letter law that a defendant cannot be found liable for indirect infringement unless the
patentee first shows direct infringement by a third party. See, e. g., Aro Mfg. Co. v. Convertible
Top Replacement Co., 377 U.S. 476, 483 (1964) (“‘[I]t is settled that if there is no direct
infringement of a patent there can be no contributory infringement.’” (quoting Aro Mfg. Co. v.
Convertible Top Replacement Co., 365 U.S. 336, 341 (1961)); Joy Techs, Inc. v. Flakt, Inc., 6
F.3d 770, 774 (Fed. Cir. 1993) (“Liability for either active inducement of infringement or for
contributory infringement is dependent upon the existence of direct infringement.”).
11
pled or allegations that Red Hat knew of the ’914 patent before MOSAID filed its original
complaint in August 2011, much less of an objectively high likelihood that Red Hat’s activities
constituted infringement of a valid patent.
MOSAID’s First Amended Complaint also omits any allegation that Red Hat possessed
the specific intent to induce infringement of the ’914 patent. (D.I. 16.) MOSAID does not allege
that Red Hat acted with the specific intent to cause any third party to infringe the ’914 patent.
(Id. at ¶ 22.) Because MOSAID has not met the threshold pleading requirements to state a claim
for inducing infringement, its allegations against Red Hat for inducement of infringement also
should be dismissed. See EON Corp., 2011 WL 2708945 at *4 (granting motion to dismiss for
failure to allege that defendants had sufficient knowledge of the asserted patent); Mallinckrodt,
670 F. Supp. 2d at 354 (dismissing claim for inducing infringement where complaint failed to
specifically allege the requisite intent and knowledge).
D. MOSAID’s Contributory Infringement Claim Should Be Dismissed for
Failure to Allege Facts Identifying a Direct Infringer, Showing the Requisite
Knowledge or Specific Intent, or Identifying a Component Meeting the
Requirements of Section 271(c)
MOSAID’s claim against Red Hat for contributory infringement of the ’914 patent
consists, in its entirety, of the following paragraph:
22. Upon information and belief, Defendant Red Hat has in the past and
continues to infringe, directly, indirectly, literally, under the doctrine of
equivalents, contributorily, and/or through the inducement of others,
one or more of the claims of the ‘914 Patent by making and using in this
judicial district and elsewhere in the United States, a caching method
which infringes at least one claim of the ‘914 Patent. Importing, selling
and/or offering to sell products and services which contribute to or
induce the further making or using of said caching method by others
with knowledge of the ‘914 Patent further infringes the ‘914 Patent.
(D.I. 16 at ¶ 22 (emphasis added).) These boilerplate and conclusory allegations likewise fail to
meet the threshold Rule 8 pleading standard as clarified by Twombly and Iqbal. To state a claim
12
for contributory infringement, MOSAID must plead facts sufficient “to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S. at 570. Because the First Amended Complaint fails
to allege facts essential to support a claim of contributory infringement against Red Hat,
MOSAID’s contributory infringement claim should be dismissed.
To prove contributory infringement under 35 U.S.C. § 271(c), a plaintiff must show the
defendant offered to sell or sold a “component of a patented machine . . . constituting a material
part of the invention, knowing the same to be especially made or especially adapted for use in an
infringement of such patent . . . .” 35 U.S.C. § 271(c) (emphasis added); see also Aro Mfg. Co.,
377 U.S. at 488 (“It is only sale of a component of a patented combination ‘knowing the same to
be especially made or adapted for use in an infringement of such patent’ that is contributory
infringement by statute.”); EON Corp., 2011 WL 2708945, at *4; Mallinckrodt, 670 F. Supp. 2d
at 354-55. As with inducing infringement, contributory infringement requires as a predicate that
some other party committed the entire act of direct infringement. See, e.g., BMC Res., 498 F. 3d
at 1381.
MOSAID’s First Amended Complaint, however, is devoid of any allegation establishing
critical elements of its contributory infringement claim. First, MOSAID fails to identify any
specific component meeting the requirements of Section 271(c). (D.I. 16 at ¶ 22.) Second,
MOSAID fails to allege that Red Hat had the requisite knowledge that some unspecified
component of the alleged infringing products was especially made or especially adapted to
infringe the ’914 patent. (Id.) Finally, MOSAID fails to identify any third party to whom Red
Hat has allegedly contributed the unknown component. (Id.) Accordingly, MOSAID has failed
to meet the threshold pleading requirements to state a claim for contributory infringement, and
its contributory infringement allegations should be dismissed. See EON Corp., 2011 WL
13
2708945, at *4 (dismissing indirect infringement claim for failure to allege defendants had
sufficient knowledge of the asserted patent); Mallinckrodt, 670 F. Supp. 2d at 355 (dismissing
contributory infringement claims for failure to sufficiently plead defendants’ knowledge of the
asserted patent).
V. CONCLUSION
For the reasons set forth above, Red Hat respectfully requests that the Court grant its
motion and dismiss without prejudice those portions of Paragraph 22 of Plaintiff’s First
Amended Complaint that are directed to inducement of infringement or contributory
infringement, and Paragraph (5) (directed to willful infringement) of the First Amended
Complaint’s Prayer for Relief.
14
Dated: December 23, 2011
FISH & RICHARDSON P.C.
By: /s/ Gregory R. Booker
Tara D. Elliott (#4483)
Gregory R. Booker (#4784)
Fish & Richardson P.C.
[address telephone email]
Katherine Kelly Lutton
Shelley K. Mack
Fish & Richardson P.C.
[address telephone]
Attorneys for Defendant
RED HAT, INC.
15
63
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOSAID TECHNOLOGIES, INC,
Plaintiff,
v.
ADOBE SYSTEMS, INC., et al.
Defendants.
C.A. No. 11-698-GMS
___________________________________
PLAINTIFF MOSAID TECHNOLOGIES, INC.’S AMENDMENT TO
CERTIFICATION OF COUNSEL PURSUANT TO LOCAL RULE 7.1.1
Plaintiff MOSAID Technologies, Inc.’s (“MOSAID”) Certification of Counsel Pursuant
to Local Rule 7.1.1 attached to its Motion for Leave to file a Second Amended Complaint (the
“Motion”) stated that “Defendant VMWare consents to the Motion[.]” (D.I. 39.) On December
22, 2011, VMWare, Inc. (“VMWare”) asked MOSAID to clarify this statement. Although
MOSAID does not believe any clarification is necessary, MOSAID attaches VMWare’s
November 15, 2011, e-mail to this Amendment to its Rule 7.1.1 Certification, in which VMWare
stated: “VMware will stipulate pursuant to FRCP 15(a)(2) that MOSAID may file the Second
Amended Complaint it filed last Friday. However, as I also mentioned, to be effective, that will
require the agreement of the other Defendants, which I do not have authority to speak to.” Since
the other defendants oppose the Motion, MOSAID now understands that VMware now opposes
the Motion as well.
December 29, 2011
Steven G. Hill
Douglas R. Kertscher
HILL, KERTSCHER & WHARTON, LLP
[address telephone]
BAYARD, P.A.
/s/ Stephen B. Brauerman
Richard D. Kirk (rk0922)
Stephen B. Brauerman (sb4952)
[address email telephone]
Attorneys for Plaintiff Mosaid
Technologies Inc.
2
65
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MOSAID TECHNOLOGIES INC.,
Plaintiff,
v.
ADOBE SYSTEMS, INC.; ALCATEL-
LUCENT USA, INC.; INTERNATIONAL
BUSINESS MACHINES CORP.; JUNIPER
NETWORKS, INC.; RED HAT, INC. and
VMWARE, INC.,
Defendants.
C.A. No. 11-698 (GMS)
DEFENDANTS' ANSWERING BRIEF IN OPPOSITION TO
PLAINTIFF'S MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT
DLAPIPER LLP (US)
Denise S. Kraft (#2778)
Aleine Porterfield (#5053)
[address telephone email]
Attorneys for Adobe Systems, Inc.
MORRIS, NICHOLS, ARSHT &TUNNELL LLP
Jack B. Blumenfeld (#1014)
Paul Saindon (#5110)
[address telephone email]
Attorneys for Alcatel-Lucent USA, Inc.
SEITZ ROSS ARONSTAM &MORITZ, LLP
Collins J. Seitz, Jr. (#2237)
[address telephone email]
Attorneys for International Business Machines
Corp.
FISH & RICHARDSON P.C.
Tara D. Elliott (#4883)
Gregory R. Booker (#4784)
[address telephone email]
Attorneys for Red Hat Inc.
YOUNG CONAWAY STARGATT &TAYLOR, LLP
Adam W. Poff (#3990)
Pilar G. Kraman (#5199)
[address telephone email]
Attorneys for VMware, Inc.
December 30, 2011
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ...... ii
I. NATURE AND STAGE OF THE PROCEEDING ...... 1
II. SUMMARY OF ARGUMENT ...... 2
III. STATEMENT OF FACTS ...... 3
IV. ARGUMENT ...... 6
A. Legal Standard on a Motion for Leave to Amend ...... 6
B. MOSAID’s Motion for Leave to Amend Should be Denied ...... 6
1. MOSAID Lacks Standing to Assert the Claims of
the SAC ...... 6
2. The Amendment Would Be Futile Because the SAC
Violates 35 U.S.C. § 299 ...... 7
3. The SAC Should Not Be Permitted Under Federal
Rule 20 ...... 12
V. CONCLUSION ...... 14
i
TABLE OF AUTHORITIES
Page(s)
CASES
3V Inc. v. Ciba Specialty Chems. Corp.,
587 F. Supp. 2d 641 (D. Del. 2008) ...... 10
Abbott Labs. v. Johnson and Johnson, Inc.,
524 F. Supp. 2d 553 (D. Del. 2007) ...... 9, 11
Androphy v. Smith & Nephew, Inc.,
31 F. Supp. 2d 620 (N.D. Ill. 1998) ...... 13
Bear Creek Techs., Inc. v. RCN Comms.,
C.A. No. 11-103, 2011 WL 3626787 (E.D. Va. Aug. 17, 2011) ...... 12
Cedars-Sinai Med. Ctr. v. Watkins,
11 F.3d 1573 (Fed. Cir. 1993) ...... 7
Codex Corp. v. Milgo Elec. Corp.,
553 F.2d 735 (1st Cir. 1977) ...... 14
Colt Defense LLC v. Heckler & Koch Defense, Inc.,
C.A. No. 04-258, 2004 U.S. Dist. LEXIS 28690 (E.D. Va. Oct. 22, 2004) ...... 13
Cornell & Co. v. Occupational Safety & Health Review Comm’n,
573 F.2d 820 (3d Cir. 1978) ...... 6
Farina v. Nokia Inc.,
625 F.3d 97 (3d Cir. 2010) ...... 8, 11
Foman v. Davis,
371 U.S. 178 (1962) ...... 6
Golden Scorpio Corp. v. Steel Horse Bar & Grill,
596 F. Supp. 2d 1282 (D. Ariz. 2009) ...... 13
Guinn v. Kopf,
96 F.3d 1419 (Fed. Cir. 1996) ...... 10
Illinois Tool Works, Inc. v. Foster Grant Co.,
395 F. Supp. 234 (N.D. Ill. 1974), aff’d on the merits, 547 F.2d 1300 (7th Cir. 1976),
cert. denied, 431 U.S. 929 (1977) ...... 9, 10
Insituform Techs., Inc. v. CAT Contracting, Inc.,
385 F.3d 1360 (Fed. Cir. 2004) ...... 8
ii
Lorenz v. CSX Corp.,
1 F.3d 1406 (3d Cir. 1993) ...... 6
Lucent Techs., Inc. v. Extreme Networks, Inc.,
C.A. No. 03-508-JJF (D. Del. Feb. 9, 2004) ...... 12, 14
McGinley v. Franklin Sports, Inc.,
262 F.3d 1339 (Fed. Cir. 2001) ...... 8
Multi-Tech Sys., Inc. v. Net2Phone, Inc.,
C.A. No. 00-346, 2000 WL 34494824 (D. Minn. June 26, 2000) ...... 13
MyMail, Ltd. v. America Online, Inc.,
223 F.R.D. 455 (E.D. Tex. 2004) ....... 13
New Jersey Mach. Inc. v. Alford Indus., Inc.,
C.A. No. 89-1879 (JCL), 1991 WL 340196 (D.N.J. Oct. 7, 1991) ...... 12
Optimum Power Solutions LLC, v. Apple Inc.,
C.A. No. 11-1509 SI, 2011 WL 4387905 (N.D. Cal. Sept. 20, 2011) ...... 13
Paine, Webber, Jackson & Curtis, Inc. v. Merrill Lynch,
564 F. Supp. 1358 (D. Del. 1983) ...... 12, 14
Philips Elecs. N. Am. Corp. v. Contec Corp.,
220 F.R.D. 415 (D. Del. 2004) ...... 12, 14
Prime Care of Ne. Kan., LLC v. Humana Ins. Co.,
447 F.3d 1284 (10th Cir. 2006) ....... 8
Rudd v. Lux Prods. Corp.,
C.A. 09-6957, 2011 WL 148052 (N.D. Ill. Jan. 12, 2011) ...... 14
Sicom Sys., Ltd. v. Agilent Techs., Inc.,
427 F.3d 971 (Fed. Cir. 2005) ...... 6, 7
Sony Elecs., Inc. v. Orion IP, LLC,
C.A. No. 05-255-GMS, 2006 WL 680657 (D. Del. March 14, 2006) ...... 14
Spread Spectrum Screening, LLC v. Eastman Kodak Co.,
C.A. No. 10-1101, 2010 WL 3516106 (N.D. Ill. Sept. 1, 2010) ...... 13
W.L. Gore & Assoc’s, Inc. v. Oak Materials Group, Inc.,
424 F. Supp. 700 (D. Del. 1976) ...... 10
Warth v. Seldin,
422 U.S. 490 (1975) ...... 6
iii
WiAV Networks, LLC v. 3Com Corp.,
C.A. No. 10-03448 WHA, 2010 WL 3895047 (N.D. Cal. Oct. 1, 2010) ...... 13
RULES AND STATUTES
35 U.S.C. § 253 ....... 1, 4, 10
35 U.S.C. § 299 ...... passim
FED.R.CIV.P. 15 ...... 3, 8-10
FED.R.CIV.P. 20 ...... 3, 12-14
OTHER AUTHORITIES
6A CHARLES ALAN WRIGHT & ARTHUR R.MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1497 (3d ed. 2011) ...... 9
iv
I. NATURE AND STAGE OF THE PROCEEDING
Plaintiff MOSAID Technologies, Inc. (“MOSAID”) filed this action on August 9,
2011 asserting U.S. Patent No. 6,505,241 (“the ‘241 patent”) against Adobe Systems, Inc.
(“Adobe”), Alcatel-Lucent USA, Inc. (“ALU”), International Business Machines Corp. (“IBM”),
Juniper Networks, Inc. (“Juniper”), NetApp, Inc. (“NetApp”) and VMware, Inc. (“VMware”),
and U.S. Patent No. 5,892,914 (“the ‘914 patent”) against Red Hat, Inc. (“Red Hat”). (D.I. 1).
Because the ‘241 patent had been dedicated to the public and disclaimed pursuant to 35 U.S.C.
§ 253, this Court lacked subject matter jurisdiction as to the claims against Adobe, ALU, IBM,
Juniper, NetApp and VMware. These defendants wrote to MOSAID on September 27, 2011
demanding dismissal of the claims against them.1 (J. Hohenthaner Sept. 27, 2011 Ltr. To S. Hill
(Ex. A)).
In response, on October 6, 2011, MOSAID filed its First Amended Complaint
(“FAC”), in which it dropped the allegations about the disclaimed ‘241 patent against Adobe,
ALU, IBM, Juniper, NetApp and VMware. (D.I. 16). MOSAID only dismissed NetApp from
this litigation, however. (D.I. 17). MOSAID alleged that each of the remaining defendants
infringed the ‘914 patent, previously asserted only against Red Hat. (D.I. 16).
On November 11, 2011, without notice to the Defendants or leave of Court,
MOSAID filed a Second Amended Complaint (“SAC”). (D.I. 33). The SAC purported to add
allegations of infringement of U.S. Patent No. 5,611,049 (“the ‘049 patent”) against Red Hat,
Adobe, ALU, IBM and Juniper; U.S. Patent No. 6,205,475 (“the ‘475 patent”) against Adobe,
IBM, Juniper and VMware; U.S. Patent No. 6,804,706 (“the ‘706 patent”) against IBM; and U.S.
________________________________
1
VMware has moved to dismiss due to MOSAID’s lack of standing to assert the ‘914
patent. (D.I. 45). That motion is currently pending before the Court.
1
Patent No. 6,026,452 (“the ‘452 patent”) against Red Hat. MOSAID then acknowledged that it
had no right to file the SAC without leave of Court and sought leave on December 12, 2011.
(D.I. 39).2 This is the Defendants’ brief in opposition to that motion.3
II. SUMMARY OF ARGUMENT
MOSAID’s motion for leave to amend should be denied first, because it lacks
standing to sue on the asserted patents. VMware has already moved to dismiss the FAC for lack
of standing. (D.I. 45). Each of the five patents asserted in the SAC claims priority to the same
PCT patent application discussed in that motion to dismiss. MOSAID does not own sufficient
rights to assert any patent claiming priority to that PCT application, and should not be permitted
leave to assert patents that it does not own. (See D.I. 46).
Second, leave to amend should be denied because the SAC would violate the
explicit misjoinder provisions of Section 299. Enacted as part of the Leahy-Smith America
Invents Act, H.R. 1249, 112th Cong., § 19 (2011) (“AIA”), Section 299 expressly prohibits the
joinder of multiple defendants “based solely on allegations that they each have infringed the
patent or patents in suit,” and permits joinder only where the asserted right to relief arises “out of
the same transaction, occurrence, or series of transactions or occurrences relating to . . . the same
accused product or process.” The SAC, however, would violate this statute by lumping together
different defendants with different products, when the only relationship is some of the patents
asserted against them. Although the original Complaint predated the enactment of the AIA, the
_____________________________
2 MOSAID declined defendants’ request to extend the time to answer the FAC until after
the Court decides this motion. Defendants moved to dismiss the FAC on December 23,
2011. (D.I. 42, 45, 48, 50, 53, 56 and 60).
3 Juniper answers separately to address issues specific to it, but also joins in this brief.
2
FAC and SAC do not relate back to the original Complaint because allegations of infringement
of different patents are not the same “conduct, transaction or occurrence” required by Rule 15(c).
Finally, even in the absence of 35 U.S.C. § 299, the SAC would improperly and
prejudicially join defendants together in violation of Fed.R.Civ.P. 20. The original Complaint
itself contained two completely separate causes of action: an allegation that six defendants
infringed a single disclaimed patent, and a separate allegation that an unrelated defendant
infringed an unrelated patent. These two completely separate causes of action should not have
been filed in a single complaint, and the SAC, in which no two defendants are accused of
infringing the same set of patents, fares no better.
III. STATEMENT OF FACTS
In its original Complaint, MOSAID asserted two patents: the ‘241 and the ‘914.
As to the ‘241 patent, entitled “Network intermediate node cache serving as proxy to client node
to request missing data from server,” the Complaint alleged:
Upon information and belief, Defendants Adobe, Alcatel, IBM,
Juniper, and NetApp have in the past and continue to infringe,
directly, indirectly, literally, under the doctrine of equivalents,
contributorily, and/or through the inducement of others, one or
more of the claims of the ‘241 Patent by making, using, importing,
selling and/or offering to sell, in this judicial district and elsewhere
in the United States, software which is covered by at least one
claim of the ‘241 Patent.4
(D.I. 1 ¶ 15). The Complaint then alleged that the “Adobe Flash Memory Server;” “Alcatel
Velocix Digital media Delivery Platform;” “IBM WebSphere Software;” “Juniper Media Flow;”
______________________________
4 All emphasis added unless otherwise indicated.
3
“NetApp FlexCache;” and “VMware vFabric GemFire Platform”5 products each infringed the
‘241 patent. (Id. ¶ 16). The ‘214 patent was not asserted against Red Hat. As to the ‘914 patent,
entitled “system for accessing distributed data cache at each network node to pass requests and
data,” the Complaint alleged infringement by only “Defendant RedHat” for the “RedHat
Enterprise Linux with Resilient Storage Add-On” and “RedHat Enterprise Server V6” products.
(Id. ¶¶ 22-23). The original Complaint alleged two separate and discrete causes of action with
not even a common patent asserted as a commonality.
After receiving the Complaint, defendants discovered that MOSAID could not
assert the ‘241 patent because more than three years earlier—on June 30, 2008—MOSAID’s
predecessor-in-interest, Network Caching Technology, LLC, had dedicated the entire patent to
the public pursuant to 35 U.S.C. § 253. (Ex. A). Defendants wrote to MOSAID’s counsel and
requested the dismissal of the lawsuit against each defendant accused of infringing the ‘241
patent. (Id.). Instead of doing so, MOSAID filed the FAC on October 6, 2011. (D.I. 16).
In the FAC, MOSAID dropped all of the original allegations against Adobe,
ALU, IBM, Juniper and VMware, in substance dismissing the action against them as it existed
prior to the AIA. To keep its earlier filing date, MOSAID added the new allegations that, in
addition to Red Hat, the other defendants (except NetApp) also infringed the ‘914 patent.6 (D.I.
16 ¶ 27). The prayer for relief also sought damages for defendants’ purported willful
infringement of the ‘914 patent. (Id. ¶ (5)).
______________________________
5 The Complaint did not specifically allege that VMware infringed any patent, but did
allege that the “VMware vFabric GemFire Platform” infringed the ‘241 patent.
6 MOSAID separately dismissed the allegations against NetApp completely. (D.I. 17).
4
On November 11, 2011, MOSAID sought to further expand this litigation by
filing the SAC without notice or leave of Court. (D.I. 33) The SAC seeks to add the following
allegations of infringement:
| Patent | Title | Defendants |
| ‘049 | System for accessing distributed data
cache channel at each network node to
pass requests and data | Red Hat, Adobe, ALU, IBM and
Juniper |
| ‘475 | Request interceptor in network nodes
for determining local storage of file
image satisfying predetermined criteria | Adobe, IBM, Juniper and VMware |
| ‘706 | Network system for transmitting
overwritten portion of client side node
cache image to server site through
intermediate downstream nodes
updating cache images of data requested
by client | IBM |
| ‘452 | Network distributed site cache ram
claimed as up/down stream
request/reply channel for storing
anticipated data and meta data | Red Hat |
(Id. ¶¶ 37-68). The SAC does not allege that any defendant infringes all five patents, nor does it
allege that any two defendants infringe the same set of patents.
The ‘914, ‘049, ‘475, ‘706 and ‘452 patents each claim priority to the same Patent
Cooperation Treaty Application, PCT App. No. PCT/US92/04939. The purported inventor of all
of these patents, William Pitts, previously assigned most, if not all, of his rights to all patents
stemming from the PCT application to Auspex Systems, Inc. in 1987. The current holder of
these rights is dismissed defendant NetApp, not MOSAID. Defendants incorporate herein the
Opening Brief in Support of Defendant VMware’s Motion to Dismiss for Lack of Standing (D.I.
46), which, although written to the ‘914 patent, describes the assignment and ownership history
of all patents claiming priority to the PCT application.
5
IV. ARGUMENT
A. Legal Standard on a Motion for Leave to Amend
The Supreme Court has enumerated several bases for which leave to amend may
be denied, including “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v.
Davis, 371 U.S. 178, 182 (1962). The Third Circuit has “interpreted these factors to mean that
‘prejudice to the non-moving party is the touchstone of the denial of an amendment.’” Lorenz v.
CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) (quoting Cornell & Co. v. Occupational Safety &
Health Review Comm’n, 573 F.2d 820, 823 (3d Cir. 1978). “In the absence of substantial or
undue prejudice, denial instead must be based on bad faith or dilatory motives, truly undue or
unexplained delay, repeated failures to cure the deficiency by amendments previously allowed,
or futility of amendment.” Id.
B. MOSAID’s Motion for Leave to Amend Should be
Denied
1. MOSAID Lacks Standing to Assert the Claims of
the SAC
Standing is “the threshold question in every federal case, determining the power
of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975); Sicom Sys., Ltd.
v. Agilent Techs., Inc., 427 F.3d 971, 975 (Fed. Cir. 2005). The question of standing determines
“whether the litigant is entitled to have the court decide the merits of the dispute or of particular
issues.” Warth, 422 U.S. at 498. MOSAID, not defendants, bears the burden of establishing
standing because “[t]he burden of establishing jurisdiction in the district court lies with the party
6
seeking to invoke the court’s jurisdiction.” Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573,
1583 (Fed. Cir. 1993); Sicom Sys., 427 F.3d at 975.
For the reasons stated in VMware’s Motion to Dismiss for Lack of Standing and
accompanying Opening Brief, MOSAID lacks standing to assert any patent claiming priority to
that PCT application.7
(D.I. 45, 46). Although that Brief directly addresses only one of the five
patents of the SAC, the ‘914 patent, the transfers addressed in the Brief apply equally to all
patents derived from the PCT application. Each of the five patents in the SAC claims priority to
the same PCT application. Because MOSAID lacks standing to assert each of the five SAC
patents, leave to amend to include those patents is improper and should be denied.
2. The Amendment Would Be Futile Because the
SAC Violates 35 U.S.C. § 299
35 U.S.C. § 299, which went into effect on September 16, 2011, permits joinder
of multiple defendants in a patent case only if:
(1) any right to relief is asserted against them jointly, severally, or
in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences
relating to the making, using importing into the United States,
offering for sale, or selling of the same accused product or process;
and
(2) questions of fact common to all defendants or counterclaim
defendants will arise in the action.
35 U.S.C. § 299(a). The statute identifies insufficient conditions for joinder:
(b) Allegations Insufficient for Joinder – For purposes of this
subsection, accused infringers may not be joined in one action as
defendants or counterclaim defendants, or have their actions
_______________________________
7
To avoid repetition, defendants hereby incorporate the Opening Brief by reference rather
than repeating the arguments a second time for the Court. See D.I. 46.
7
consolidated for trial, based solely on allegations that they each
have infringed the patent or patents in suit.
35 U.S.C. § 299(b).
The AIA further states that “[t]he amendments made by [new 35 U.S.C. § 299]
shall apply to any civil action commenced on or after the date of the enactment of this Act.”
AIA § 19 at 129. Because Congress did not specify otherwise, the normal relation back rules
govern when an action was “commenced.” See Farina v. Nokia Inc., 625 F.3d 97, 111 (3d Cir.
2010)8 (holding that the newly enacted Class Action Fairness Act (“CAFA”) applied when the
amended complaint did not relate back to the original complaint). The Farina court reasoned:
Congress passed CAFA aware of the general principles of relationback
analysis, both under state law and Fed.R.Civ.P. 15(c). It is
only natural that Congress would intend to incorporate into CAFA
the case law governing amended pleadings. “Precisely because
CAFA does not define ‘commencement’ of an action, it is obvious
that CAFA is not intended to replace case[ ]law deciding when a
lawsuit is considered ‘commenced…’” . . . Under this standard,
the Second Amended Complaint commenced a new action.
Id. at 112.9 Congress similarly did not define “commenced” for purposes of the AIA.
For an amendment to relate back to the original complaint, Fed. R. Civ. P.
15(c)(1)(B) requires that “the amendment asserts a claim or defense that arose out of the conduct,
_________________________________
8 The Federal Circuit applies regional precedent to issues of joinder. See, e.g., Insituform
Techs., Inc. v. CAT Contracting, Inc., 385 F.3d 1360,1372 (Fed. Cir. 2004) (“Because the
joinder issue is not unique to patent law, we apply the law of the regional circuit.”);
McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1357 (Fed. Cir. 2001) (“A district
court’s decision to grant or deny a motion for leave to join a party involves a procedural
question that raises no special issues relating to patent law, and, therefore Tenth Circuit
law applies in this case.”).
9 The Farina court also expressed concern that disregarding the relation back rules would
entail “the practically untenable result that once a pre-CAFA case is filed, the plaintiff
can tack on new causes of action so substantively independent of the original case that
they would be properly treated as filed after CAFA’s effective date for all legal purposes
… except for CAFA.” Id. at 111 (quoting Prime Care of Ne. Kan., LLC v. Humana Ins.
Co., 447 F.3d 1284, 1288 n. 4 (10th Cir. 2006)).
8
transaction, or occurrence set out—or attempted to be set out—in the original pleading”
FED.R.CIV.P. 15(c)(1) (2011). “An alleged infringement of one patent is not the ‘same conduct,
transaction or occurrence’ as the alleged infringement of another patent.” Illinois Tool Works,
Inc. v. Foster Grant Co., 395 F. Supp. 234, 250-51 (N.D. Ill. 1974), aff’d on the merits, 547 F.2d
1300 (7th Cir. 1976), cert. denied, 431 U.S. 929 (1977); 6A CHARLES ALAN WRIGHT & ARTHUR
R.MILLER, FEDERAL PRACTICE AND PROCEDURE § 1497 (3d ed. 2011) (“amendments alleging . . .
the infringement of a different patent, or even a separate violation of the same statute may be
subject to the defense of statute of limitations because of a failure to meet the transaction
standard.”). Similarly, a claim cannot relate back to an earlier complaint where the right to assert
infringement did not exist at the time of the original filing. See Abbott Labs. v. Johnson and
Johnson, Inc., 524 F. Supp. 2d 553, 558 n. 10 (D. Del. 2007) (citing Illinois Tool Works, 395 F.
Supp. at 251).
MOSAID’s motion for leave to amend should be denied because the SAC violates
35 U.S.C. § 299, and the amendment would therefore be futile. The SAC does not and could not
allege that the parties are jointly or severally liable for any acts of infringement. Nor does it
allege a common “transaction, occurrence, or series of transactions or occurrences” among the
defendants’ “accused product[s] or process[es].” Instead, it alleges that six defendants’ unrelated
products infringe various combinations of five patents. The only commonality amongst the
defendants is that the SAC alleges that their products infringe one of those five patents, the ‘914
9
patent. These allegations do not meet the requirements of 35 U.S.C. § 299(a), and indeed are
expressly prohibited by 35 U.S.C. § 299(b).10
Although the AIA and 35 U.S.C. § 299 went into effect after MOSAID filed its
original Complaint, MOSAID filed the FAC on October 6, 2011 (and the motion for leave to file
the SAC two months later), after the AIA’s September 16, 2011 effective date. The FAC cannot
relate back to the original Complaint as to Adobe, ALU, IBM, Juniper and VMware because the
original Complaint alleged infringement only of the statutorily disclaimed ‘241 patent against
those defendants. The Court lacks jurisdiction to hear allegations relating to a statutorily
disclaimed patent,11 and for these defendants there is no case or controversy to relate back to.
The FAC’s allegations that these defendants infringe the ‘914 patent is not the same “conduct,
transaction or occurrence” as the alleged infringement of the ‘241 patent. The later allegations of
patent infringement cannot satisfy Rule 15(c) and cannot relate back to the original filing.12 See,
e.g., Illinois Tool, 395 F. Supp. at 250-51.
______________________________
10 Although the same arguments apply to the FAC, defendants did not have an opportunity
to oppose the entry of that complaint. Defendants plan on filing a motion to dismiss or
sever the FAC for misjoinder.
11 “A statutory disclaimer under 35 U.S.C. § 253 has the effect of canceling the claims from
the patent and the patent is viewed as though the disclaimed claims had never existed . . .
.” Guinn v. Kopf, 96 F.3d 1419, 1422 (Fed. Cir. 1996) (citing Altoona Publix Theatres,
Inc. v. American Tri-Ergon Corp., 294 U.S. 477, 492 (1935)). A disclaimed patent
cannot be the source of subject matter jurisdiction for the Court. See W.L. Gore &
Assoc’s, Inc. v. Oak Materials Group, Inc., 424 F. Supp. 700, 702 (D. Del. 1976) (“Since
all the claims have been disclaimed, the effect of plaintiff’s action is the same as
dedication of the patent to the public or abandonment. The Court, therefore, no longer
has any jurisdiction . . . .”); 3V Inc. v. Ciba Specialty Chems. Corp., 587 F. Supp. 2d 641,
645 (D. Del. 2008) (same).
12 To the extent that MOSAID argues that allegations that the additional defendants
infringed the ‘914 patent should relate back to the original Complaint because the FAC
merely added additional parties to an existing claim, Rule 15(c) requires that the
additional party “knew or should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s identity.” Fed.R.Civ.P. 15(c)(1)(C)(ii). It is not plausible to suggest that the defendants “knew or should have
known” that MOSAID would have asserted the ‘914 patent against them “but for a
mistake concerning [their] identity” when MOSAID had included them in a litigation
involving the ‘914 patent, but chose not to assert it against them.
10
The original Complaint alleged that Red Hat infringed the ‘914 patent, but this
alone does not permit relation back. See Farina, 625 F.3d at 111-13. For example, in Farina, a
newly asserted claim against a single set of defendants, the “LG defendants,” prevented the
relation back of Farina’s entire Second Amended Complaint for all defendants. Id. A fortiori,
the potential relation back of a single defendant in this case cannot require the relation back of
the other five.
The SAC seeks to add four additional patents to the allegations of the FAC, which
would be asserted against various combinations of the defendants. The reasons why the FAC
does not relate back to the original Complaint apply a fortiori to the SAC. Moreover, the SAC
alleges indirect and willful infringement by all parties for all asserted patents, which requires,
inter alia, that defendants knew of the patents. The SAC alleges, however, that defendants
learned of the patents in suit only after the filing of the original Complaint. (See, e.g., D.I. 39
¶¶ 21, 38, 54, 59, and 65 (asserting defendants learned of each patent on or after the service of
the original Complaints)). Without knowledge of the patent, no claim for indirect infringement
or willfulness could have existed at the time of the original Complaint, and the SAC’s indirect
infringement claims cannot relate back to a time before the existence of the asserted right. See
Abbott Labs., 524 F. Supp. 2d at 558 n. 10. Because the SAC does not relate back to the original
Complaint, the AIA, enacted after the original Complaint but before the FAC and SAC, applies
to and prohibits the SAC’s joinder of defendants.
11
3. The SAC Should Not Be Permitted Under
Federal Rule 20
Under Rule 20, joinder of multiple defendants in one action is proper only if:
(A) any right to relief is asserted against them jointly, severally, or
in the alternative with respect to or arising out of the same
transaction, occurrence, or series of transactions or occurrences;
and
(B) any question of law or fact common to all defendants will arise
in the action.
Fed. R. Civ. P. 20(a)(2). As Judge Jordan held, “[i]n order to permit joinder, both tests must be
satisfied.” Philips Elecs. N. Am. Corp. v. Contec Corp., 220 F.R.D. 415, 417 (D. Del. 2004); see
also Bear Creek Techs., Inc. v. RCN Comms., C.A. No. 11-103, 2011 WL 3626787, at *1 (E.D.
Va. Aug. 17, 2011) (“[C]ourts have uniformly held that parties are misjoined when they fail to
satisfy either of the preconditions for permissive joinder of parties set forth in [Rule] 20a.”).
Even before the AIA went into effect on September 16, 2011, an allegation that
multiple parties infringed the same patent was “an insufficient basis to join unrelated parties as
defendants in the same lawsuit” because “[a]llegations of infringement against two unrelated
parties based on different acts do not arise from the same transaction.” Philips Elecs., 220
F.R.D. at 417-18. See also Paine, Webber, Jackson & Curtis, Inc. v. Merrill Lynch, 564 F. Supp.
1358, 1371 (D. Del. 1983) (same); Lucent Techs., Inc. v. Extreme Networks, Inc., C.A. No. 03-
508-JJF (D. Del. Feb. 9, 2004) (severing the defendants because plaintiff failed to satisfy the
joinder standard) (Ex. B); New Jersey Mach. Inc. v. Alford Indus., Inc., C.A. No. 89-1879 (JCL),
1991 WL 340196, at *1 (D.N.J. Oct. 7, 1991) (“Infringement of the same patent by different
machines and parties does not constitute the same transaction or occurrence to justify joinder of
the new defendants.”). “[N]umerous courts have found that ‘joinder is often improper where
[multiple] competing businesses have allegedly infringed the same patent by selling different
12
products.’” WiAV Networks, LLC v. 3Com Corp., C.A. No. 10-03448 WHA, 2010 WL 3895047,
at *3 (N.D. Cal. Oct. 1, 2010) (quoting Spread Spectrum Screening, LLC v. Eastman Kodak Co.,
C.A. No. 10-1101, 2010 WL 3516106, at *2 (N.D. Ill. Sept. 1, 2010)); see also Colt Defense
LLC v. Heckler & Koch Defense, Inc., C.A. No. 04-258, 2004 U.S. Dist. LEXIS 28690, at *13
(E.D. Va. Oct. 22, 2004) (describing as “overwhelming authority” the rule prohibiting joinder of
patent defendants accused of infringing the same patent with different products).13
By including section 299(b), Congress did not intend the AIA to change Rule 20,
but only undo a misinterpretation based primarily on the Eastern District of Texas’s opinion in
MyMail, Ltd. v. America Online, Inc., 223 F.R.D. 455, 456 (E.D. Tex. 2004). The legislative
history of the AIA is clear that the purpose of section 299(b) was to confirm the existing majority
rule and put to rest that minority construction. As stated in the House Report, the AIA only
intended to “legislatively abrogate[] the construction of Rule 20(a) adopted in MyMail, Ltd. v.
America Online, Inc., 223 F.R.D. 455 (E.D. Tex. 2004)” to “effectively conform[] these courts’
jurisprudence to that followed by a majority of jurisdictions.” H.R. REP. No. 112-98, pt. 1, at 55
_______________________________
13 Additional cases where courts have found misjoinder based upon the status of defendants
as competitors selling different products include Optimum Power Solutions LLC, v. Apple
Inc., C.A. No. 11-1509 SI, 2011 WL 4387905, at *3 (N.D. Cal. Sept. 20, 2011) (“Plaintiff
has not alleged that defendants acted in concert or otherwise controlled or directed each
others’ conduct—and indeed defendants appear to be ardent competitors of one another
in the market place for their products”); Bear Creek, 2011 WL 3626787, at *5
(dismissing misjoined defendants where they were “independently owned and operated
entities, and in some cases direct competitors.”); Androphy v. Smith & Nephew, Inc., 31
F. Supp. 2d 620, 623 (N.D. Ill. 1998) (“Here, [defendants] are separate companies that
independently design, manufacture and sell different products in competition with each
other. Clearly, the common transaction requirement has not been met as to the claims
against [defendants].”); Multi-Tech Sys., Inc. v. Net2Phone, Inc., C.A. No. 00-346, 2000
WL 34494824, at *7 (D. Minn. June 26, 2000) (“Plaintiff asserts infringement claims
against unrelated defendants who primarily compete in the same marketplace and provide
independent products and services.”); Golden Scorpio Corp. v. Steel Horse Bar & Grill,
596 F. Supp. 2d 1282, 1285 (D. Ariz. 2009) (“allegations against multiple and unrelated
defendants for acts of patent . . . infringement do not support joinder under Rule 20(a)”
(citations omitted)) (severing a defendant for misjoinder).
13
n. 61 (citing Rudd v. Lux Prods. Corp., C.A. 09-6957, 2011 WL 148052, at *3 (N.D. Ill. Jan. 12,
2011)).
Even if the AIA did not apply to the SAC, Congress did not intend 35 U.S.C.
§ 299 to change the majority view of Rule 20, but rather to codify it and make it mandatory. As
exemplified in Paine Webber, Philips and Lucent, even before the AIA, this Court has
recognized the majority view that alleged infringement of the same patent is not sufficient to join
parties. Joinder under the SAC would prejudice defendants. The SAC alleges different products
infringe for each defendant. Indeed, the SAC only asserts one of the five patents, the ‘914
patent, against each of the six defendants. Two of the remaining asserted patents are asserted
against only a single defendant, and no defendant is accused of infringing all five patents. As
this Court has previously held, “[a]lthough there may be some efficiency to be gained by
consolidating certain aspects of discovery, [plaintiff] ignores the possibility that collateral issues
specific to any one of the many unrelated parties involved in both cases may create inefficiencies
that would not arise if the proceedings remained separate.” Sony Elecs., Inc. v. Orion IP, LLC,
C.A. No. 05-255-GMS, 2006 WL 680657, at *2 (D. Del. March 14, 2006) (citing Codex Corp. v.
Milgo Elec. Corp., 553 F.2d 735, 739 (1st Cir. 1977)). MOSAID’s motion for leave to amend
should be denied, regardless of the applicability of the AIA.
V. CONCLUSION
For the foregoing reasons, MOSAID’s Motion for Leave to File a Second
Amended Complaint should be denied.
14
DLAPIPER LLP (US)
/s/ Aleine Porterfield
Denise S. Kraft (#2778)
Aleine Porterfield (#5053)
[address telephone email]
Attorneys for Adobe Systems, Inc.
MORRIS, NICHOLS, ARSHT &TUNNELL LLP
/s/ Paul Saindon
Jack B. Blumenfeld (#1014)
Paul Saindon (#5110)
[address telephone email]
Attorneys for Alcatel-Lucent USA, Inc.
SEITZ ROSS ARONSTAM &MORITZ, LLP
/s/ Collins J. Seitz, Jr.
Collins J. Seitz, Jr. (#2237)
[address telephone email]
Attorneys for International Business Machines
Corp.
FISH & RICHARDSON P.C.
/s/ Gregory R. Booker
Tara D. Elliott (#4883)
Gregory R. Booker (#4784)
[address telephone email]
Attorneys for Red Hat Inc.
YOUNG CONAWAY STARGATT &TAYLOR, LLP
/s/ Adam W. Poff
Adam W. Poff (#3990)
Pilar G. Kraman (#5199)
[address telephone email]
Attorneys for VMware, Inc.
December 30, 2011
15
CERTIFICATE OF SERVICE
I hereby certify that on December 30, 2011, I caused the foregoing to be
electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
such filing to all registered participants.
Richard D. Kirk, Esquire
Stephen B. Brauerman, Esquire
BAYARD, P.A.
[address]
Attorneys for Plaintiff
VIA ELECTRONIC MAIL
Steven G. Hill, Esquire
Douglas R. Kertscher, Esquire
HILL, KERTSCHER &WHARTON, LLP
[address]
Attorneys for Plaintiff
VIA ELECTRONIC MAIL
Collins J. Seitz, Jr., Esquire
SEITZ ROSS ARONSTAM &MORITZ, LLP
[address]
Attorneys for Juniper Networks, Inc.
VIA ELECTRONIC MAIL
Richard Birnholz, Esquire
Jonathan Kagan, Esquire
IRELL &MANELLA LLP
[address]
Attorneys for Juniper Networks, Inc.
VIA ELECTRONIC MAIL
/s/ Paul Saindon
Paul Saindon (#5110)
16
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| Authored by: Anonymous on Tuesday, January 10 2012 @ 08:53 AM EST |
| ... [ Reply to This | # ]
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| Authored by: Kilz on Tuesday, January 10 2012 @ 09:03 AM EST |
| Please mention the error in the title of your post. [ Reply to This | # ]
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- etal - Authored by: Anonymous on Tuesday, January 10 2012 @ 12:02 PM EST
- etal - Authored by: IANALitj on Tuesday, January 10 2012 @ 01:17 PM EST
- etal - Authored by: bprice on Tuesday, January 10 2012 @ 02:39 PM EST
- & al. - Authored by: BJ on Tuesday, January 10 2012 @ 07:17 PM EST
- Corrections - Authored by: hairbear on Wednesday, January 11 2012 @ 02:38 AM EST
- Links in docket list - Authored by: Anonymous on Thursday, January 12 2012 @ 04:21 AM EST
| |
| Authored by: Kilz on Tuesday, January 10 2012 @ 09:04 AM EST |
| For all posts that are not on topic. [ Reply to This | # ]
|
- Study Confirms: News Networks Owned By SOPA Supporters... Are Ignoring SOPA/PIPA - Authored by: Anonymous on Tuesday, January 10 2012 @ 12:48 PM EST
- Oh my ears and whiskers! - Authored by: betajet on Tuesday, January 10 2012 @ 02:51 PM EST
- BYU scholar is a leader in advancing education technology - Authored by: Anonymous on Tuesday, January 10 2012 @ 04:27 PM EST
- Blackwater, Monsanto and Gates - Authored by: Anonymous on Tuesday, January 10 2012 @ 07:53 PM EST
- Progressive sites finally picking up lack of news on SOPA - Authored by: maco on Tuesday, January 10 2012 @ 07:55 PM EST
- Raspberry Pi - We’ve started manufacture! - Authored by: Anonymous on Tuesday, January 10 2012 @ 08:10 PM EST
- Lockdown - The coming war on general-purpose computing - Authored by: Anonymous on Tuesday, January 10 2012 @ 10:32 PM EST
- Stopped they must be; on this all depends. - Authored by: Anonymous on Tuesday, January 10 2012 @ 10:36 PM EST
- More Bill G and Monsanto madness. - Authored by: Anonymous on Wednesday, January 11 2012 @ 09:05 AM EST
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| Authored by: Kilz on Tuesday, January 10 2012 @ 09:05 AM EST |
Please mention the name of the news story in the title of
your post.[ Reply to This | # ]
|
- In Which Eben Moglen Like, Legit Yells at Me for Having Facebook - Authored by: Anonymous on Tuesday, January 10 2012 @ 10:23 AM EST
- Amen! - Authored by: mcinsand on Tuesday, January 10 2012 @ 12:10 PM EST
- Don't like "like" - Authored by: Anonymous on Tuesday, January 10 2012 @ 12:27 PM EST
- And Leaving Facebook is, like easy? - Authored by: Anonymous on Tuesday, January 10 2012 @ 03:07 PM EST
- After giving.... no one said it was easy to remove.... - Authored by: Anonymous on Tuesday, January 10 2012 @ 05:36 PM EST
- My error - Authored by: Anonymous on Tuesday, January 10 2012 @ 09:13 PM EST
- And Leaving Facebook is, like easy? - Authored by: Anonymous on Tuesday, January 10 2012 @ 05:41 PM EST
- And Leaving Facebook is, like easy? - Authored by: Anonymous on Tuesday, January 10 2012 @ 06:44 PM EST
- And Leaving Facebook is, like easy? - Authored by: Steve Martin on Wednesday, January 11 2012 @ 08:49 AM EST
- Welcome to the Hotel California - Authored by: Anonymous on Wednesday, January 11 2012 @ 10:01 AM EST
- Forced to join facebook! - Authored by: Anonymous on Thursday, January 12 2012 @ 10:31 PM EST
- Microsoft sues Motorola Mobility, bringing patent fight to UK - Authored by: tiger99 on Wednesday, January 11 2012 @ 07:50 AM EST
- Seattle librarian Nancy Pearl to publish out-of-print books with help from Amazon.com - Authored by: Anonymous on Thursday, January 12 2012 @ 07:28 AM EST
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| Authored by: Kilz on Tuesday, January 10 2012 @ 09:07 AM EST |
| We all know Microsoft is EVIL! [ Reply to This | # ]
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| Authored by: stegu on Tuesday, January 10 2012 @ 11:06 AM EST |
I can't help but wonder whether Mosaid is a hero in
troll disguise, like a sheep in wolf's clothing.
They enter the fray and shoot themselves in the foot
multiple times in wide open view by making basic mistakes,
seemingly out of stupidity, ignorance and sloppiness.
Their recent liaisons make MS and Nokia look silly by
association. Their case is a drag on the courts and
is mocked and ridiculed by quite a lot of people, and
they really have little hope now of saving face or
ever being taken seriously again.
If anyone with a lot of money to throw away wanted to
damage the patent litigation machine beyond repair, what
better method would there be than to act like Mosaid:
shoot from the hip and hit only yourself and your allies,
disrupting the dark side's war effort from within?
No, I don't really believe this is the case. But you
have to admit that this is a hilarious hat trick of
own goals. Evil is seldom this stupid, so we should
cherish the moment.
[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, January 10 2012 @ 11:27 AM EST |
I mean, how can they not know a patent case doesn't work like
"I'll just say the defendant infringed, sordid details
following later"?
__
magicmulder[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, January 10 2012 @ 11:58 AM EST |
Has a court dismissed their complain? Ordered them to pay costs to
anyone? Sanctioned them in any way? Dismissed their without-leave
second complain? Dismiss the entire thing with prejudice?
No? Then I find the title of this article a bit amusing. What exactly is the
downside to not knowing the law?
They're a troll. Their purpose in life is to make things unpleasant until you
are willing to just pay them to go away. And so far, it's been several months
on this suit and it's still on the books, no matter now meritless. And the
defendants have to respond to this crap, not matter how nonsensical.
Maybe there's a big slap coming from a judge, but until I see it I'll keep the
cork in the champaign bottle. [ Reply to This | # ]
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| Authored by: sirwired on Tuesday, January 10 2012 @ 12:25 PM EST |
You'd think the patent trolls of the world would have learned by now that suing
IBM is a 100% guarantee you are not going to win. I'm quite sure IBM can find
patents for breathing, walking, and filing patent lawsuits.
If I were them, I'd drop Big Blue (and it's big pockets and defensive patent
portfolio) from the suit entirely. But here's to hoping they don't and get
squashed like a bug.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, January 10 2012 @ 01:22 PM EST |
I'm kinda hoping I've misunderstood, but I think I'm reading that this bunch has
sued for infringement of 6(?) patents they DO NOT OWN?
I gotta be misreading the article, right?
patent 241: assigned to public,
patent 914, owned by NetApp
patent 049, owned by NetApp
patent 475, Owned by NetApp
patent 706, Owned by NetApp
patent 452, Owned by NetApp
If I'm reading correctly, at least they are not suing NetApp for infringing
NetApp's own patents. But that may be in the third amended complaint.
On the face of it, it looks like this bunch set up a target list of who to sue,
and only then threw together whatever was at hand (or not) as the pretext of the
suit.
On second thought: I only see six patents listed in the article, are there any
patents in suit that MOSAID actually owns?
I gotta be missing something.
JG[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, January 10 2012 @ 01:34 PM EST |
| Nimrod and Nimrod and Another Nimrod? [ Reply to This | # ]
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| Authored by: wvhillbilly on Tuesday, January 10 2012 @ 02:37 PM EST |
Am I getting it right that some or all of the complaints Mosaid is asserting
were for patents in effect in 1987? If this is true, all such patents should
have expired no less than five years ago, and maybe many more.
How can Mosaid assert infringement of expired patents? That would be a total
screw-up!
---
"It is written." always trumps, "Um, ah, well, I thought..."[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, January 11 2012 @ 07:21 AM EST |
... acquisition concluded on December 23rd, a couple of
weeks ago. Perhaps
that explains the litigation confusion.
See this
Gringo [ Reply to This | # ]
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