IconFind, Inc. v. Google, Inc.

Filing 36

MEMORANDUM by IconFind, Inc. in support of 35 Motion to Dismiss and Motion to Strike. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Proposed Order)(Folgers, Anna) Modified on 4/20/2011 (Becknal, R).

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WILKE, FLEURY, HOFFELT, GOULD & BIRNEY, LLP
Thomas G. Redmon (SBN 47090)
[e-mail]
Daniel L. Baxter (SBN 203862)
[e-mail]
400 Capitol Mall, 22nd Floor
Sacramento, CA 95814
Phone: [phone]
Fax: [phone]

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NIRO, HALLER & NIRO
Raymond P. Niro (Admitted Pro hac vice)
[e-mail]
Raymond P. Niro, Jr. (Admitted Pro hac vice)
[e-mail]
Brian E. Haan (Admitted Pro hac vice)
[e-mail]
Anna B. Folgers (Admitted Pro hac vice)
[e-mail]
181 West Madison, Suite 4600
Chicago, IL 60602-4515
Phone: [phone]
Fax: [phone]

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Attorneys for Plaintiff IconFind, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

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ICONFIND, INC.,

Case No. 2:11-cv-00319-GEB-JFM

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Plaintiff,

PLAINTIFF ICONFIND, INC.'S
MEMORANDUM IN SUPPORT OF ITS
MOTION TO DISMISS PURSUANT TO
FRCP 12(B)(6) AND MOTION TO
STRIKE PURSUANT TO FRCP 12(F)

Defendant.

DATE: MAY 16, 2011
TIME: 9:00 A.M.
PLACE: COURTROOM 10
JUDGE GARLAND E. BURRELL, JR.

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v.
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GOOGLE INC.,
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Plaintiff IconFind, Inc. (“IconFind”) respectfully moves to dismiss the “amended”

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counterclaim purporting to allege invalidity of the patent-in-suit by Defendant Google Inc.

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("Google") under Rule 12(b)(6). IconFind also moves to strike Google's corresponding amended

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affirmative defense of invalidity pursuant to Rule 12(f). Because Google has for a second time

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failed to specify adequate grounds or supporting facts that could possibly support a finding that

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IconFind’s patent is invalid, Google's amended invalidity counterclaim (Count Two) and

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corresponding amended affirmative defense (Second Defense) fail to state claims on which relief

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can be granted and must be dismissed as a matter of law.

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Even after filing an amended pleading, Google’s invalidity allegations fall far short of the

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requirements of Rule 8 and recent Supreme Court precedent. In place of Google’s blatantly

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insufficient “catch all” invalidity counterclaim, Google has instead added language that still does

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not provide to IconFind notice of the basis for Google’s invalidity allegations. (Def's First

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Amended Answer, Dkt. No. 27, ¶ 11-12, Exhibit A).

The amended patent invalidity

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counterclaim asserts that the Iconfind patent is invalid because it fails to meet the “conditions for

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patentability” of 35 USC §§ 102, 103, and/or 112 because the “alleged invention thereof lacks

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utility; is taught by, suggested by, and/or obvious in view of, the prior art; and/or is unsupported

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by the written description of the patented invention.” (Def's First Amended Answer, Dkt. No.

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27, ¶ 14-15, Exhibit A). Instead of identifying what prior art Google contends invalidates the

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Iconfind patent, Google simply added legal buzzwords to its allegations in a thin attempt to raise

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its pleading up to the proper standard. While Google has narrowed the statutory subsections on

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which it intends to rely, it still provides no facts to support its allegations. Google's Second

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Defense replicates the language of its counterclaim Count Two, and is likewise deficient. (Def's

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First Amended Answer, Dkt. No. 27, ¶ 14-15, Exhibit A).

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counterclaim alleging invalidity under "35 USC §§ 102, 103 and/or 112 because the alleged

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invention thereof lacks utility" is nonsensical: lack of utility is an issue brought under Section

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101 – not Sections 102, 103 or 112. As such, these allegations do not state a claim that is

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plausible on its face, and cannot withstand scrutiny under the Supreme Court’s Twombly and

Moreover, Google’s amended

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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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Iqbal decisions. On that basis, numerous courts in this Circuit have dismissed similarly deficient

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counterclaims and affirmative defenses.

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Accordingly, and as set forth in further detail below, IconFind respectfully requests that

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the Court grant its motion to dismiss Google's amended counterclaim of patent invalidity (Count

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Two) pursuant to Rule 12(b)(6) and grant its motion to strike Google's amended affirmative

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defense of invalidity (Second Defense) pursuant to Rule 12(f).

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I.

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On February 3, 2011, IconFind filed this suit in the United States District Court for the

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Eastern District of California for infringement of its United States Patent No. 7,181,459 B2.

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Google has known about this patent for years. In January 2009, IconFind provided notice to

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Google that the '459 patent covered Google's operation of its website functionality. Nonetheless,

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Google has continued its infringement with disregard for the '459 patent. Google and its patent

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attorneys also were aware of the '459 patent as evidenced by the prosecution of Google's own

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U.S. Patent Nos. 7,664,734, 7,693,825 and 7,788,274.

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BACKGROUND

On April 1, 2011, Iconfind filed its first Motion to Dismiss and Motion to Strike

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Google’s invalidity counterclaim and corresponding affirmative defense.

Recognizing the

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deficiencies in its pleading, Google on April 11, 2011 filed a First Amended Answer and

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Counterclaims (Dkt. No. 27) and requested Iconfind to withdraw its pending Motion to Dismiss

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in light of this filing. (Correspondence, Exhibit B). Iconfind informed Google that its pleading

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was still deficient, but in an effort to compromise, suggested that Google agree to provide to

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Iconfind substantive discovery responses concerning invalidity. Id. Google declined to agree to

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Iconfind’s request. Id. Accordingly, without fair notice Google's counterclaims via the pleading,

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and without any assurance from Google that it would substantively respond to discovery,

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Iconfind had no choice but to file this Motion regarding Google's amended pleading.

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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

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FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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The pleading deficiencies of Google's counterclaim are striking, particularly given

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Google's familiarity with the patent and that this is Google’s second attempt to adequately plead

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its counterclaim. Google has now twice been given ample opportunity to prepare and adequately

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set forth the basis for its invalidity claim and affirmative defense. Its complete failure to do so

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requires dismissal of its counterclaim and affirmative defense.

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II.

APPLICABLE LAW
A.

Rule 8 and Rule 12(b)(6)

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“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain ‘a short and

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plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal,

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129 S. Ct. 1937, 1949 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). “A pleading that offers ‘labels’ and

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conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.

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(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Nor does a complaint

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suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.

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"A Rule 12(b)(6) dismissal motion tests the legal sufficiency of the claims alleged in the

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complaint." McMaster v. United States, 2010 U.S. Dist. LEXIS 99831, at *2 (E.D. Cal. Sept. 9,

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2010) (Burrell, J.); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding such a

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motion, all material allegations of the complaint are accepted as true. Id. “To survive a motion

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to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (citations omitted). The

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Supreme Court in Iqbal explained that:

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[a] claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged. … The plausibility standard is not akin to a "probability
requirement," but it asks for more than a sheer possibility that a defendant has
acted unlawfully. … Where a complaint pleads facts that are "merely consistent
with" a defendant's liability, it "stops short of the line between possibility and
plausibility of 'entitlement to relief.'"
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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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Id. The Iqbal Court further explained that its decision in Twombly was based on two underlying
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principles. Id. “First, the tenet that a court must accept as true all of the allegations contained in
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a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of the
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cause of action, supported by mere conclusory statements, do not suffice.” Id. (emphasis
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added). “Second, only a complaint that states a plausible claim for relief survives a motion to
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dismiss. … Determining whether a complaint states a plausible claim for relief will … be a
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context-specific task that requires the reviewing court to draw on its judicial experience and
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common sense.” Iqbal, 129 S. Ct. at 1950; See Tech. Licensing Corp. v. Technicolor USA, Inc.,
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2010 U.S. Dist. LEXIS 113292, at *5-6 (E.D. Cal. Oct. 15, 2010) (Shubb, J.).
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B.

Rule 12(f)

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Under Rule 12(f), “[t]he court may strike from a pleading an insufficient defense or any
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redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "The purpose
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of the rule is to avoid the costs that accompany litigating spurious issues by dispensing with
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those issues prior to trial." J & J Sports Prods. v. Delgado, 2011 U.S. Dist. LEXIS 9013, at *3-4
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(E.D. Cal. Jan. 18, 2011) (Shubb, J.). Though a motion to strike is generally viewed with
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disfavor, it may be appropriate where allegations "may cause prejudice to one of the parties."
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Ramos Oil Recyclers, Inc. v. AWIM, Inc., 2007 U.S. Dist. LEXIS 62608, at *3 (E.D. Cal. Aug.
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15, 2007) (Burrell, J.). “A defense may be struck if it fails to provide ‘fair notice’ of the basis
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for the defense.” Qarbon.com v. eHelp Corp., 315 F. Supp. 2d 1046, 1051 (N.D. Cal. 2004)
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(Ware, J.) (granting motion to strike affirmative defenses for patent invalidity for “failure to
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provide ‘fair notice’ of what the defense is and the grounds upon it rests”), (citing Advanced
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Cardiovascular Sys. v. Scimed Sys., 1996 U.S. Dist. LEXIS 11700, at *9-10 (N.D. Cal. July 24,
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1996) (granting motion to strike affirmative defenses of patent invalidity)). In fact, in this
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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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Circuit, the “key to determining the sufficiency of pleading an affirmative defense is whether it

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gives plaintiff fair notice of the defense.” Ramos Oil Recyclers, Inc., 2007 U.S. Dist. LEXIS

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62608, at *3, (citing Wyshak v. City National Bank, 607 F.2d 824, 827 (9th Cir. 1979)).

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III.

GOOGLE'S AMENDED COUNTERCLAIM ALLEGING PATENT
INVALIDITY IS INSUFFICIENT AS A MATTER OF LAW

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A claim for declaratory judgment of invalidity that wholly fails to specify the grounds for
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invalidity is insufficient as it does not provide fair notice of the party's claims. PB Farradyne,
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Inc. v. Peterson, 2006 U.S. Dist. LEXIS 3408, at *8-10 (N.D. Cal., Jan. 17, 2006).

In

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Qarbon.com, the court dismissed a counterclaim for invalidity which was similar to the
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counterclaim in this case, finding it “radically insufficient.” In assessing the counterclaim, the
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Qarbon.com court stated:
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eHelp alleges that "the '441 patent is invalid and void under the provisions of
Title 35, United States Code §§ 100 et seq., and specifically, §§ 101, 102, 103,
and/or 112 ...." Counterclaim P6. Such a pleading is "radically insufficient." …
By making general allegations, eHelp fails to give "fair notice" to Qarbon.
'Effective notice pleading should provide the defendant with a basis for assessing
the initial strength of the plaintiff's claim, for preserving relevant evidence, for
identifying any related counter- or cross-claims, and for preparing an appropriate
answer."

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315 F. Supp. 2d at 1050-1051 (internal citations omitted) (emphasis added). Similarly, in PB

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Farradyne, Inc., 2006 U.S. Dist. LEXIS 3408 , at *8-10 (Illston, J.), the court granted a motion to

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dismiss counterclaims that were similar to those in Qarbon.com and in this case, finding that, as

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pled, the counterclaims did not “provide defendants with sufficient notice of the basis for its

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claims.” Likewise, in Duramed Pharms., Inc. v. Watson Labs., Inc., the court dismissed a

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counterclaim which contained the general allegation that the claims of the patent-in-suit were

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“invalid because they fail to comply with one or more of the statutory requirements for

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patentability set forth in 35 U.S.C. §§ 101 et seq,” stating “[plaintiff] is correct that this

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allegation fails to state a claim. By failing to specify which of the many grounds of patent
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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

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FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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invalidity it is relying upon, [defendant] does not put [plaintiff] on fair notice as to the basis of its

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counterclaim.” 2008 U.S. Dist. LEXIS 103389, at *11 (D. Nev. Dec. 12, 2008).

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Google’s amended counterclaim for invalidity is as follows:

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11. The ’459 patent is invalid under 35 U.S.C. § 101 because it fails to claim patentable
subject matter insofar as it seeks to claim an abstract idea.

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12. The ’459 patent is invalid because it fails to meet the “conditions for patentability” of
35 USC §§ 102, 103, and/or 112 because the alleged invention thereof lacks utility; is
taught by, suggested by, and/or obvious in view of, the prior art; and/or is unsupported by
the written description of the patented invention.

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(Def's First Amended Answer, Dkt. No. 27, Exhibit A).

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Google’s amended Section 101 pleading is a formulaically recited legal theory asserted

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wholly without factual support. As such, it fails to state a claim that is plausible on its face.

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Iqbal, 129 S. Ct. at 1949.

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'conditions for patentability' of 35 USC §§ 102, 103, and/or 112 because the alleged invention

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thereof lacks utility" is groundless; lack of utility is an issue brought under Section 101, not

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Sections 102, 103 and 112. See 35 U.S.C. § 101 (Exhibit C); See MPEP § 2107.01 General

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Principles Governing Utility Rejections. Google’s further inclusion of the legal concepts “is

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taught by, suggested by, and/or obvious in view of, the prior art” is still no replacement for

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adequate Section 102 and 103 allegations. Similarly, Google’s inclusion of the legal concept

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“unsupported by the written description of the patented invention” is no replacement for

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adequate Section 112 allegations.

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independent grounds for relief. (See Exhibits A-E) Google's allegations fail to provide any, much

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less “fair [ ]notice of what the … claim is and the grounds upon which it rests.” Twombly, 550

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U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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Google's next allegation of invalidity for failure "to meet the

As set forth below, these Sections provide numerous

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For example, Section 102 of the Patent Act alone provides seven (7) subsections. (35

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U.S.C. § 102, Exhibit C). At least five (5) of these subsections, in turn, set forth numerous
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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

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FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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independent and far-ranging grounds for invalidating a patent claim, such as prior public use,

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prior offer to sell, prior printed-publication, abandonment, prior patenting in a foreign country by

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the inventor or his or her legal representatives or assigns, prior published patent applications by

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others, prior issued patents by others, non-joinder of inventors, prior invention by others and the

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like. See 35 U.S.C. § 102(a)-(g), (35 U.S.C. § 102, Exhibit C). For instance, what is the “prior

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art” that Google contends to be invalidating?

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The same is true with respect to the passing reference by Google to Section 103, which

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sets forth additional bases for patent invalidity in the event that “the invention is not identically

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disclosed or described as set forth in section 102 ….” (35 U.S.C. § 103, Exhibit D). Again, what

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is the “prior art” that Google contends invalidates the Iconfind patent under Section 103?

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Moreover, merely including the buzzwords of obviousness in its allegation is not enough. Iqbal,

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129 S. Ct. at 1949 ("a formulaic recitation of the elements of a cause of action will not do").

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While Google's Amended Answer has replaced its former counterclaim’s open-ended

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listing of statutes with additional legal language, it sill fails to provide any notice to IconFind –

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or the Court – of the nature of its counterclaim other than that Google apparently contends that

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the patent-in-suit is invalid. Google's amended counterclaim is barely a formulaic recitation of

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elements, which itself “will not do” under Iqbal and Twombly, and also contains no factual

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enhancement whatsoever. Here, the Court cannot accept as true any facts in these counterclaims,

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as it must under a Rule 12(b)(6) analysis, because Google has alleged no facts at all. As such,

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Google's counterclaim fails to either “raise a right to relief above the speculative level” or “state

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a claim that is plausible on its face.” Twombly, 550 U.S. at 555, 570.

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Google will presumably rely on Network Caching Tech., LLC v. Novell, Inc. in support

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of the sufficiency of its amended counterclaim because Google admitted to IconFind that it used

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the "exact language" analyzed in that decision. (April 12 Correspondence, Exhibit B, citing 2001
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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

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FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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U.S. Dist. LEXIS 26211, at*6-7 (N.D. Cal. Dec. 31, 2001))). First of all, that case was decided

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long before the binding decisions relied upon to support IconFind's motion, including Twombly

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and Iqbal. Moreover, in the modifications Google did make to the language in that case, it only

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further confounded its problems by asserting that the invention "lacks utility" under the wrong

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statutory sections. Google's reliance on Network Caching does not support the sufficiency of its

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counterclaim, but instead, only shows that Google intended to provide the bare minimum, See

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Network Caching, 2001 U.S. Dist. LEXIS 26211, at*6-7 (noting that "more factual specificity

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would be helpful"), which is insufficient under the current, controlling case law.

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Moreover, IconFind will be prejudiced by Google's inadequate pleadings. Scheduling

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orders and other discovery controls are meant to streamline the litigation process – not to provide

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litigants the opportunity to offer a vague pleading, unnecessarily expand the scope of the

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litigation and then rely on the expensive and time-consuming fact and expert discovery process

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to flush out their theories. Relatedly, in an effort to compromise, IconFind requested that Google

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assure IconFind that it would substantively respond to invalidity interrogatories rather than

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object to them as premature. (April 12-13 Correspondence, Exhibit B). Google would provide

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no such assurance. Id. Thus, allowing Google to proceed with its vague invalidity pleading

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prejudices IconFind, as it unfairly allows Google additional time to develop its theories, and

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forces IconFind to use the expensive and time consuming discovery process to extract Google's

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theories which should have been provided in the pleading.

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In short, if Google has viable theories of patent invalidity, it should be allowed to plead

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and litigate them, provided that they are well-grounded in fact and law and they provide adequate

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notice to IconFind and the Court of its allegations. What it should not be allowed to do is to

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merely speculate – without providing any notice to IconFind and to the Court – that the patent-

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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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in-suit is invalid for unspecified reasons in a pleading and then use that deficient pleading to

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expand the scope of the lawsuit unnecessarily.

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Google’s second attempt to adequately plead that the Iconfind patent is also deficient.

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Google should not be given a third bite at the apple. For this and all of the foregoing reasons,

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Google's amended invalidity counterclaim should be dismissed.

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IV.

GOOGLE'S AMENDED SECOND AFFIRMATIVE DEFENSE SHOULD
BE STRICKEN FROM THE PLEADING FOR FAILING TO PROVIDE
FAIR NOTICE OF THE DEFENSE

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For the reasons set forth above, Google's affirmative defense alleging patent invalidity

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(Second Defense) should also be dismissed. Under Rule 12(f), “[t]he court may strike from a

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pleading an insufficient defense." Fed. R. Civ. P. 12(f). “Under Rule 8 of the Federal Rules of

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Civil Procedure, an affirmative defense must be pled with the minimal specificity to give the

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plaintiff ‘fair notice’ of the defense.” Advanced Cardio, 1996 U.S. Dist. LEXIS 11700, at *9-10;

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see also Qarbon.com, 315 F. Supp. 2d at 1049 (N.D. Cal. 2004) (striking affirmative defenses

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and stating, “[defendant’s] affirmative defenses fail to provide ‘fair notice’ of what the defense is

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and the grounds upon which it rests”); see also Sprint Communications Co., L.P. v.

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Thegolbe.com, Inc., 233 F.R.D. 615, 619 (D. Kan. 2006) (striking affirmative defense which

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stated “[defendant] is informed and believes that [plaintiff’s seven patents], and each of the

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seven claims thereof, are invalid, void and/or unenforceable under one or more of the sections of

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Title 35 of the United States Code.” In this Circuit, the “key to determining the sufficiency of

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pleading an affirmative defense is whether it gives plaintiff fair notice of the defenses.” Ramos

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Oil Recyclers, Inc., 2007 U.S. Dist. LEXIS 62608, at *3 (citing Wyshak, 607 F.2d at 827).

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Google's amended counterclaim for invalidity clearly does not meet the requirements of

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Rule 8, does not provide IconFind fair notice of Google's counterclaim and cannot withstand a

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Rule 12(b)(6) challenge. Likewise, Google's amended affirmative defense added minimal legal
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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

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FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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language which does nothing to clarify its allegations, particularly concerning its Section 102

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and 103 contentions and states as follows:

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14. The claims of the ’459 patent are invalid under 35 U.S.C. § 101 because they fail to
claim patentable subject matter insofar as each seeks to claim an abstract idea.

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15. The claims of the ’459 patent are invalid because they fail to meet the “conditions
for patentability” of 35 USC §§ 102, 103, and/or 112 because the claims lack utility; are
taught by, suggested by, and/or obvious in view of, the prior art; and/or are not
adequately supported by the written description of the patented invention.

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(Def's First Amended Answer, Dkt. No. 27, ¶ 14-15, Exhibit A). Google's amended affirmative

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defense fails to provide fair notice of the defense or the factual grounds on which it rests and,

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therefore, should be stricken on those bases. Like Google's deficient counterclaim, Google's

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amended affirmative defense on patent invalidity prejudices IconFind because it unfairly allows

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Google additional time to develop its theories, and forces IconFind to use the expensive and time

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consuming discovery process to extract Google's invalidity theories which should have been

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pled.

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V.

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WHEREFORE, IconFind respectfully requests that the Court grant its motion to dismiss

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Google's amended counterclaim of patent invalidity (Count Two) pursuant to Rule 12(b)(6) and

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grant its motion to strike Google's amended affirmative defense of patent invalidity (Second

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Defense) pursuant to Rule 12(f).

CONCLUSION

Respectfully submitted,

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/s/ Anna B. Folgers
NIRO, HALLER & NIRO
Raymond P. Niro (Pro hac vice)
[e-mail]
Raymond P. Niro, Jr. (Pro hac vice)
[e-mail]
Brian E. Haan (Pro hac vice)
[e-mail]
Anna B. Folgers (Pro hac vice)

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WILKE, FLEURY, HOFFELT, GOULD &
BIRNEY, LLP
Thomas G. Redmon (SBN 47090)
[e-mail]
Daniel L. Baxter (SBN 203862)
[e-mail]

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Attorneys for Plaintiff IconFind, Inc.

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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

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FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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[e-mail]

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Attorneys for Plaintiff IconFind, Inc.

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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO

FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on April 18, 2011 the foregoing

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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS
MOTION TO DISMISS PURSUANT TO
FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)

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was filed with the Clerk of Court using the CM/ECF system, which will then send a notification
of such filing to the following counsel of record.

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Michael J. Malecek
[e-mail]
Kaye Scholer LLP
Two Palo Alto Square, Suite 400
3000 El Camino Real
Palo Alto, California 94306
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant Google Inc.
I certify that all parties in this case are represented by counsel who are CM/ECF participants.

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/s/ Anna B. Folgers
Attorney for Plaintiff

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PLAINTIFF ICONFIND, INC.'S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PURSUANT TO
FRCP 12(B)(6) AND MOTION TO STRIKE PURSUANT TO FRCP 12(F)