United States District Court, D. Delaware
BLUE SPIKE LLC, BLUE SPIKE INTERNATIONAL LTD. and WISTARIA TRADING LTD., Plaintiffs,
COMCAST CABLE COMMUNICATIONS, LLC, Defendant.
REPORT AND RECOMMENDATION
CHRISTOPHER J. BURKE UNITED STATES MAGISTRATE JUDGE.
patent infringement action filed by Plaintiffs Blue Spike
LLC, Blue Spike International Ltd. and Wistaria Trading Ltd.
("Plaintiffs") against Defendant Comcast Cable
Communications, LLC ("Comcast" or
"Defendant"), pending is Defendant's motion to
dismiss Counts I through VII of Plaintiffs' Complaint,
filed pursuant to Federal Rule of Civil Procedure 12(b)(6)
(the "Motion"). (D.I. 8) More specifically,
Defendant moves to dismiss: (1) Counts I through III of the
Complaint, which respectively allege direct, induced and
willful infringement of claim 1 of United States Patent No.
7, 475, 246 ("the '246 patent"), claim 13 of
U.S. Patent No. 8, 739, 295 ("the '295
patent"), and claim 8 of U.S. Patent No. 9, 934, 408
("the '408 patent") (collectively referred to
herein as the "Secure Server patents"); (2) Counts
IV and V of the Complaint, which respectively allege direct,
induced and willful infringement of claim 14 of U.S. Patent
No. 7, 159, 116 ("the '116 patent") and claim
35 of U.S. Patent No. 8, 538, 011 ("the 'Oil
patent") (collectively referred to herein as the
"Trusted Transaction patents"); and (3) Counts VI
and VII of the Complaint, which respectively allege direct,
induced and willful infringement of claim 1 of U.S. Patent
No. 9, 021, 602 ("the '602 patent") and claim
11 of U.S. Patent No. 9, 104, 842 ("the '842
patent") (collectively referred to herein as the
"Watermarking patents"). (D.I. 9 at 4-18) For the
reasons set out below, the Motion is GRANTED-IN-PART and
filed their Complaint on January 28, 2019, in which they
allege that Defendant infringes 12 different patents. (D.I.
1) Defendant filed the Motion on April 26, 2019. (D.I.
8)The Motion has been referred to this Court
for resolution, (D.I. 5), and it was fully briefed on May 17,
2019, (D.I. 14).
STANDARD OF REVIEW
standard of review here is the familiar two-part analysis
applicable to motions made pursuant to Rule 12(b)(6). See
Raindance Techs., Inc. v. 10x Genomics, Inc., Civil
Action No. 15-152-RGA, 2016 WL 927143, at *2 (D. Del. Mar. 4,
2016) (applying the Twombly/Iqbal standard to claims
of direct patent infringement filed subsequent to the
December 2015 abrogation of Federal Rule of Civil Procedure
84 and patent pleading Form 18); see also North Star
Innovations, Inc. v. Micron Tech., Inc., Civil Action
No. 17-506-LPS-CJB, 2017 WL 5501489, at *1 (D. Del. Nov. 16,
2017). First, the Court separates the factual and legal
elements of a claim, accepting "all of the
complaint's well-pleaded facts as true, but
[disregarding] any legal conclusions." Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
Second, the Court determines "whether the facts alleged
in the complaint are sufficient to show that the plaintiff
has a 'plausible claim for relief.'"
Id. at 211 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009)). A plausible claim does more than
merely allege entitlement to relief; it must also demonstrate
the basis for that "entitlement with its facts."
Id. Thus, a claimant's "obligation to
provide the 'grounds' of his 'entitle[ment] to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (alteration in original) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). In
assessing the plausibility of a claim, the court must
'"construe the complaint in the light most favorable
to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to
relief.'" Fowler, 578 F.3d at 210 (quoting
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233
(3d Cir. 2008)).
regard to their allegations of direct infringement,
Plaintiffs need to have pleaded facts that plausibly indicate
that Defendant's accused instrumentalities practice each
of the limitations asserted in the relevant claims. See
Raindance Techs., Inc., 2016 WL 927143, at *2-3. After
all, if after reading a complaint, the Court cannot conclude
that it is plausible that the accused infringer's product
reads on a limitation of an asserted claim of a
patent-in-suit, then it cannot be plausible that the accused
infringer actually infringes that patent claim.
Modern Telecom Sys., LLC v. TCL Corp.,
Civil Action No. 17-583-LPS-CJB, 2017 WL 6524526, at *2 (D.
Del. Dec. 21, 2017) (citing cases).
challenges the adequacy of the infringement allegations
regarding seven patents-in-suit. The Court will assess each
of these allegations in turn.
The '246 Patent
of the Complaint alleges infringement of claim 1 of the
'246 patent. (D.I. 1 at ¶¶ 74-90) That claim
recites a "local content server (LCS) system for
creating a secure environment for digital content" and
includes the following limitations: (1) the LCS has a
"domain processor that imposes rules and procedures for
content being transferred between the LCS and devices outside
the LCS" and (2) "said domain processor permitting
the LCS to receive digital content from outside the LCS
provided the LCS first determines that the digital content
being delivered to the LCS is authorized for use by the
LCS" ('246 patent, col. 19.30-54) Defendant argues
that the Complaint fails to plead facts plausibly asserting
that these claim limitations are met by the accused
instrumentalities, which here are "one or more Xfinity
X1 TV Boxes, [and] by way of example include Arris XG1v3,
Arris XGiv4, Arris Xi6, Pace XG1v1, Pace RNG150nP2, and Pace
Xi5[.]" (D.I. 1 at ¶ 76)
respect to the first limitation at issue, Defendant asserts
that although the Complaint states that "[u]pon
information and belief ... [s]aid domain processor is found
within the Accused Instrumentalities ... [in that] [f]or
example, various Comcast Xfinity X1 TV Boxes [hereinafter,
"Xfinity Box[es]"] include a central processing
unit[, ]" (D.I. 1 at ¶ 82), the Complaint fails to
sufficiently allege that this processing unit "imposes
rules and procedures for content" or that any such
content is "transferred between the LCS and devices
outside the LCS." (D.I. 9 at 6 (internal quotation marks
omitted)) The Court agrees. Although Plaintiffs counter by
noting that the Complaint also makes reference to attached
Exhibit 8 (a short article reviewing the product at issue),
(D.I. 13 at 4-5 (citing D.I. 1 at ¶ 82 & ex. 8)),
Plaintiffs do not explain in their pleading or in their
briefing what it is about this article that suggests that the
processor in question has the requisite capabilities.
(Id.; D.I. 1 at ¶ 82 & ex. 8) The Court has
reviewed the article, and after doing so, it cannot be sure
that it has figured out the answer. See Saunders v.
Davis, No. 15-CV-2026 (RC), 2016 WL 4921418, at *12
(D.D.C. Sept. 15, 2016) (granting a motion to dismiss where
the plaintiff argued that attachments to his complaint
"reflect[ed] facts above the speculative level" but
where the plaintiff did not "explain the relevance of
these attachments") (internal quotation mark and
citation omitted). There must be a reason why Plaintiffs
think that this article helps establish (or that for some
other reason, it is likely the case) that the processor at
issue works in this way. In amending their pleading (as the
Court will permit Plaintiffs to do, see infra at p.
15), Plaintiffs should just state what are the facts that
make them think this is so.
Plaintiffs' allegations in Count I are insufficient to
plead a plausible claim with regard to the first limitation
at issue, the Court will recommend dismissal of this Count
without prejudice. Thus, it will decline to address
Defendant's arguments about the second limitation at