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Blue Spike LLC v. Comcast Cable Communications, LLC

United States District Court, D. Delaware

September 6, 2019

BLUE SPIKE LLC, BLUE SPIKE INTERNATIONAL LTD. and WISTARIA TRADING LTD., Plaintiffs,
v.
COMCAST CABLE COMMUNICATIONS, LLC, Defendant.

          REPORT AND RECOMMENDATION

          CHRISTOPHER J. BURKE UNITED STATES MAGISTRATE JUDGE.

         In this 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").[1] (D.I. 9 at 4-18) For the reasons set out below, the Motion is GRANTED-IN-PART and DENIED-IN-PART.

         I. BACKGROUND

         Plaintiffs 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)[2]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).

         II. STANDARD OF REVIEW

         The 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)).

         With 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).[3]

         III. DISCUSSION

         Defendant challenges the adequacy of the infringement allegations regarding seven patents-in-suit.[4] The Court will assess each of these allegations in turn.

         A. The '246 Patent

         Count I 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)[5] 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)

         With respect to the first limitation at issue, Defendant asserts that although the Complaint states that "[u]pon information and belief[6] ... [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.[7] 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.

         As 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 issue.[8]

         B. The ...


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