Wistron Corporation et al v. Phillip M. Adams & Associates LLC

Filing 81

ORDER by Judge Edward M. Chen granting 52 Plaintiffs' Motion to Dismiss Counts I and II of Defendants' Counterclaim; and denying without prejudice 78 Plaintiffs' Motion for Sanctions (emclc1, COURT STAFF) (Filed on 9/12/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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WISTRON CORPORATION, et al.,

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For the Northern District of California

United States District Court

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No. C-10-4458 EMC

Plaintiffs,
v.
PHILLIP M. ADAMS & ASSOCIATES,
LLC, et al.,

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ORDER GRANTING PLAINTIFFS’
MOTION TO DISMISS COUNTS I AND
II OF DEFENDANTS’
COUNTERCLAIM; AND DENYING
WITHOUT PREJUDICE PLAINTIFFS’
MOTION FOR SANCTIONS

Defendants.
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(Docket Nos. 52, 78)
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Plaintiffs in this case are Wistron Corporation, Wistron Infocomm (Texas) Corporation,

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Wistron Infocomm Technology (America) Corporation, AOpen Incorporated, and AOpen America

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Incorporated. The Wistron entities are hereinafter collectively referred to as “Wistron” and the

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AOpen entities as “AOpen.”

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Defendants in this case Phillip M. Adams & Associates, LLC, AFTG-TG LLC, and Phillip
M. Adams. Defendants are hereinafter collectively referred to as “Adams.”
Wistron and AOpen initiated this action against Adams, seeking a declaration that certain

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patents owned by Adams are not valid and enforceable and that they do not infringe those patents.

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Adams has filed counterclaims for patent infringement and trade secret misappropriation. Currently

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pending before the Court is Wistron and AOpen’s motion to dismiss. Having considered the parties’

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briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby

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GRANTS the motion to dismiss. In addition, the Court DENIES without prejudice Wistron and

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AOpen’s motion for sanctions.

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I.

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FACTUAL & PROCEDURAL BACKGROUND

As alleged in the first amended complaint (“FAC”), “Wistron Corp. is in the business of

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designing, developing and manufacturing computer products such as notebook computers, computer

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peripheral equipment and other electronic products for customers to sell under their own brand

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name.” FAC ¶ 2. The other Wistron entities are subsidiaries of Wistron Corp. See id. ¶¶ 3-4. As

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for AOpen Inc., it is also “in the business of manufacturing and selling computer products such as

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notebook computers and computer peripheral equipment.” Id. ¶ 5. The other AOpen entity is a
subsidiary of AOpen Inc. See id. ¶ 6.

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For the Northern District of California

United States District Court

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As noted above, Wistron and AOpen initiated this litigation, seeking a declaration that

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certain patents owned by Adams are not valid and enforceable and that they do not infringe those

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patents. The patents at issue are as follows: ‘002, ‘222, ‘858, ‘752, ‘475, ‘601, ‘203, ‘802, ‘804, and

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‘766.

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In its counterclaims, Adams seeks a declaration that Wistron and AOpen do infringe four of

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the patents above, i.e., the ‘002, ‘222, ‘858, and ‘802 patents. More specifically, Adams alleges that

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Wistron and AOpen are both direct infringers and indirect infringers. According to Adams, Wistron

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and Open have directly infringed “through, among other activities, the manufacture, use,

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importation, sale and/or offer for sale of computer chips, motherboards, computers and other

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products, as well as using infringing methods including . . . testing of [Wistron and AOpen] products

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as part of the manufacturing process.” Countercl. ¶ 91. As for indirect infringement, Adams claims

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that Wistron and AOpen have (1) “knowingly and intentionally induced others to infringe . . . such

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as [their] customers and end-users . . . by intentionally aiding, assisting and encouraging their

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infringement” and (2) “knowingly contributed to the infringement of others . . . such as [their]

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customers and end-users . . . by supplying their technical know-how and infringing computer chips

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and motherboards (which are nonstaple articles of commerce having no substantial non-infringing

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use).” Id.

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Adams maintains that, “at a minimum, [the] product AP58 contains an infringing Super I/O

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controller.”1 Id. ¶ 92. Adams also contends that Wistron and AOpen’s products, or products

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imported by Wistron or AOpen, “containing a Feature Integrated Systems (‘Fintek’), SMsC, Ali, SiS

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Super I/O or a Super I/O containing an OPUS-based FDC core or a bridge chipset containing a core

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of any of the previously identified components infringe one or more of the patents-in-suit.” Id.

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In addition to a claim for patent infringement, Adams asserts a claim for trade secret

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misappropriation. Adams contends that its trade secrets are proprietary and confidential test

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programs and “related technologies” that “allow users to determine, and fix, corruption defects in

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computers.” Id. ¶ 99. According to Adams, in two prior lawsuits involving different alleged
infringers (i.e., Gateway and Winbond), it discovered that the alleged infringers and “other computer

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For the Northern District of California

United States District Court

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and chip manufacturers in Taiwan had obtained unauthorized and stolen copies of Adams’[s] test

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programs, design & test technologies and trade secret technologies, and that [the alleged infringers]

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were using stolen copies of Adams’[s] technologies in their manufacture, assembly, and testing of

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computer products.” Id. ¶ 97. Adams alleges, upon information and belief, that, like the other

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alleged infringers, Wistron and AOpen made changes to their product lines based upon the

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unauthorized use of its stolen test programs and technologies, implying that Wistron and AOpen are

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part of the group of Taiwan manufacturers engaged in the theft of trade secrets. Id. ¶ 98.

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In the currently pending motion, Wistron and AOpen ask the Court to dismiss both the patent
infringement and trade secret misappropriation claims.

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II.
A.

DISCUSSION

Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the

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failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). A motion to

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dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks

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Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). In considering such a motion, a court

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must take all allegations of material fact as true and construe them in the light most favorable to the

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AP58 appears to be an AOpen product only. See Ratinoff Decl., Ex. 4. Adams conceded
such at the hearing on the motion to dismiss.

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nonmoving party, although “conclusory allegations of law and unwarranted inferences are

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insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.

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2009). While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough

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facts to state a claim to relief that is plausible on its face.’” Id. “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); see

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also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). “The plausibility standard is not akin to

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a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted

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unlawfully.” Id.
B.

Patent Infringement

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For the Northern District of California

United States District Court

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1.

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In the motion to dismiss, Wistron argues that the allegations in support of the claim for direct

Direct Infringement

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infringement are too conclusory and therefore fail to give adequate notice under Federal Rule of

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Civil Procedure 8 as to what the suit is about.2 In particular, Wistron contends that Adams’s direct

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infringement claim is deficient unless and until Adams specifies which products allegedly infringe

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(except for one product, i.e., the AP58 product which belongs to AOpen only, Adams simply refers

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to computer chips, motherboards, computers, and “other products”) and provides information as to

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how they infringe. In response, Adams argues that its allegations are sufficient because they provide

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the information that is required by Form 18 of the Federal Rules of Civil Procedure and, under Rule

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84, “[t]he forms in the Appendix suffice under these rules . . . .” Fed. R. Civ. P. 84 (also stating that

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the forms “illustrate the simplicity and brevity that these rules contemplate”).

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Numerous district courts have recognized that there is an apparent tension between what

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Form 18 and what Twombly and Iqbal deem sufficient. See Bender v. LG Elecs. U.S.A., Inc., No. C

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09-02114 JF (PVT), 2010 U.S. Dist. LEXIS 33075, at *15-16 (N.D. Cal. Mar. 11, 2010) (noting that

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“it is difficult to reconcile the guidelines set forth in Twombly and Iqbal with Form 18”). For

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example, Judge Seeborg noted in a 2009 decision that Form 18 seems to require nothing more than

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conclusory statements, see Elan Microelecs. Corp. v. Apple, Inc., No. C 09-01531 RS, 2009 WL

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AOpen does not move to dismiss the claim for direct infringement.

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2972374, at *2 (N.D. Cal. Sept. 14, 2009), while Twombly and Iqbal clearly reject conclusory

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allegations as inadequate. See also Lyda v. Fremantle Media N. Am., Inc., No. 10 Civ. 4773 (DAB),

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2011 U.S. Dist. LEXIS 77540, at *5-6 (S.D.N.Y. July 14, 2011) (noting that, prior to Iqbal, courts –

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in accordance with Form 18’s predecessor – did not require plaintiffs to identify the specific

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infringing product or method with particularity but that, after Twombly and Iqbal, several courts

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have required plaintiffs to make specific allegations about infringing products in their complaints).

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Most courts, however, have considered Form 18 and Twombly/Iqbal to conflict only with

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respect to the level of specificity required for the allegedly infringing product. That is, as a general

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matter, courts do not require a patent holder to explain in any level of detail (beyond Form 18) as to
how a product infringes. This makes sense particularly in this District because, under its Patent

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For the Northern District of California

United States District Court

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Local Rules, a patent holder is obligated to provide infringement contentions shortly after the initial

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case management conference. See Pat. L.R. 3-1. Therefore, an alleged infringer is given some level

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of detail about the infringement early on in the case, albeit not at the outset. See Microsoft Corp. v.

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Phoenix Solns., Inc., 741 F. Supp. 2d 1156, 1159 (C.D. Cal. 2010) (noting that “minimal pleading of

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direct infringement is sufficient because this Court requires the prompt filing of infringement

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contentions, which put the party accused of infringement on detailed notice of the basis for the

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allegations against it”). Accordingly, the Court rejects Wistron’s contention that the patent

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infringement claim should be dismissed for failure to explain how the alleged products infringe.

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Wistron, however, has a meritorious argument in favor of dismissal based on Adams’s

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failure to specify which of its products allegedly infringe. (As noted above, Adams has identified

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one accused product owned by AOpen.) First, the Court notes that Adams has referred to

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infringement by “other products” without providing any further identification of such products. This

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bare reference to “products” is clearly inadequate. See Acco Brands USA LLC v. Hewlett Packard

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Co., No. SACV 11-275 DOC (MLGx), 2011 U.S. Dist. LEXIS 67420, at *6 (N.D. Cal. June 23,

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2011) (noting that plaintiff simply alleged that defendants’ “products” infringe; “[w]ithout any sort

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of factual specificity in the Complaint, Moving Defendants have no notice of the claims they are

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required to meet and defend”).

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Second, notwithstanding the suggestion in Form 18 that specificity is not necessary, most

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courts have, in the wake of Twombly and Iqbal, required some level of specificity regarding the

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accused product, i.e., beyond the generic descriptions such as those employed by Adams (“computer

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chips, motherboards, computers”). Indeed, many courts have even required an exact identification.

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See Bender v. LG, 2010 U.S. Dist. LEXIS 33075, at *12 (noting that “[s]everal recent district court

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cases have held that the factual allegations in a patent infringement complaint must identify the

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specific products accused”); Trading Techs. Int’l, Inc. v. BCG Partners, Inc., No. 10 C 715, 2011

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U.S. Dist. LEXIS 48399, at *9 (N.D. Ill. May 5, 2011) (noting that, “[a]t a minimum, the plaintiff

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must plead which of the defendant’s products is at issue”).
To the extent Adams argues that providing an exact identification is in conflict with Federal

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For the Northern District of California

United States District Court

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Circuit precedent, that is not true. In fact, in McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed.

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Cir. 2007) – a decision that post-dated Twombly but pre-dated Iqbal – the patent holder had provided

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an exact identification of the accused product. All that the Federal Circuit (in interpreting Fifth

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Circuit pleading requirements) stated in McZeal was that “a plaintiff in a patent infringement suit is

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not required to specifically include each element of the claims of the asserted patent.”3 Id. at 1357;

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see also Bender v. Motorola, 2010 U.S. Dist. LEXIS 26076, at *8-9 (concluding that plaintiff read

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too much into McZeal by claiming that, there, the Federal Circuit reaffirmed the validity of Form

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18).

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Accordingly, the Court grants Wistron’s motion to dismiss the direct infringement claim

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based on a failure to specify which products allegedly infringe. The Court notes that this ruling is

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consistent with its prior ruling in this case on Adams’s motion to dismiss, in which it held that

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Wistron and AOpen’s failure to identify the products for which they sought a finding of

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noninfringement made adjudication of the infringement claim impossible. See Docket No. 31

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(Order at 19) (stating that, absent identification of the products accused of infringement, there was

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no case or controversy or sufficient specificity to satisfy Twombly and Iqbal). While the dismissal

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here is without prejudice – i.e., the Court gives Adams leave to amend to provide the requisite

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specificity regarding the allegedly infringing products – the Court forewarns Adams that failure to

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This is another reason not to require further detail as to how the accused products infringe.

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provide sufficient specificity in its amended complaint will likely result in a dismissal with

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prejudice. The issue of the need to identify accused products has now been addressed in this

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litigation on more than one occasion.

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2.

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In its FAC, Adams asserts not only a claim for direct infringement but also a claim for

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indirect infringement. The indirect infringement claim is based on two different theories: (1)

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inducement of infringement and (2) contributory infringement.

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Indirect Infringement

“[T]o prevail on an inducement claim, [a] patentee must establish ‘first that there has been
direct infringement, and second that the alleged infringer knowingly induced infringement and

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For the Northern District of California

United States District Court

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possessed specific intent to encourage another’s infringement.’” ACCO Brands, Inc. v. ABA Locks

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Mfr. Co., 501 F.3d 1307, 1312 (Fed. Cir. 2007). In turn, liability for contributory infringement

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arises where a party “sells a component with knowledge that the component is especially designed

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for use in a patented invention, and is not a staple article of commerce suitable for substantial non-

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infringing use.” Spansion, Inc. v. ITC, 629 F.3d 1331, 1353 (Fed. Cir. 2010).

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In the instant case, although Adams has two different theories of indirect infringement, each

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theory is predicated on the direct infringer being either a customer of Wistron or AOpen or an end-

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user of one of their products. See, e.g., AquaTex Indus., Inc. v. Techniche Solns., 419 F.3d 1374,

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1379 (Fed. Cir. 2005) (noting that, “[a]lthough not directly infringing, a party may still be liable for

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inducement or contributory infringement of a method claim if it sells infringing devices to customers

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who use them in a way that directly infringes the method claim”).

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Wistron and AOpen have made multiple challenges to the two indirect infringement theories,

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two of which are particularly compelling – i.e., that, for the contribution theory, it is not entirely

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clear which components are at issue, see Countercl. ¶ 89 (claiming that Wistron and AOpen’s

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products, or products imported by Wistron or AOpen, “containing a Feature Integrated Systems

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(‘Fintek’), SMsC, Ali, SiS Super I/O or a Super I/O containing an OPUS-based FDC core or a

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bridge chipset containing a core of any of the previously identified components infringe one or more

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of the patents-in-suit”), and that, for both the inducement and contribution theories, Adams has

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failed to plead the requisite knowledge.

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The lack of clarity regarding which components are at issue is essentially the same problem

and contribution, there must be an allegation that Wistron and AOpen knew that there was

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infringement. See, e.g., Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2067 (2011)

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(stating that inducement to infringe, like contributory infringement, requires knowledge); Fujitsu

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Ltd. v. Netgear Inc., 620 F.3d 1321, 1330 (Fed. Cir. 2010) (stating that, for contributory

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infringement, plaintiff “must show that [defendant] ‘knew that the combination for which its

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components were especially made was both patented and infringing’”). In the counterclaims,

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For the Northern District of California

as discussed above. As for the failure to plead knowledge, it is undisputed that, for both inducement

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United States District Court

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Adams pleads knowledge of infringement, but in conclusory terms. Post-Twombly and Iqbal, courts

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have typically rejected conclusory allegations of knowledge. See Iqbal, 129 S. Ct. at 1954

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(acknowledging that Federal Rule of Civil Procedure (b) allows intent to be alleged generally but

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noting that “‘generally’ is a relative term” and, for purposes of Rule 9, “merely excuses a party from

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pleading discriminatory intent under an elevated pleading standard”; adding that Rule 8 is not

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satisfied where a party simply “plead[s] the bare elements of his cause of action [and] affix[es] the

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label ‘general allegation’”); Air Vent, Inc. v. Owens Corning Corp., No. 02: 10-cv-01699, 2011 U.S.

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Dist. LEXIS 70833, at *15 (W.D. Pa. June 30, 2011) (noting that “the Complaint includes a single

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conclusory averment that Owens Corning ‘knew or had reason to know’ that the VentSure product

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would cause contributory infringement of the ‘574 Patent because of the prior business relationship

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between the parties” but that “the Complaint does not set forth any factual averments which describe

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why or how such a relationship would have resulted in such specific knowledge by Owens

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Corning”). Compare Adaptor, Inc. v. Sealing Sys., No. 09-CV-1070, 2010 U.S. Dist. LEXIS

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139054, at *7-8 (E.D. Wisc. Dec. 29, 2010) (finding knowledge of infringement plausible where

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patent holder “alleges that Adaptor had knowledge of the patent prior to creating and otherwise

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using or selling its systems, and that it does not have a license” and “further alleges that [patent

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holder] gave notice to Adaptor of the alleged infringement, but that Adaptor has nonetheless

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continued to engage in the complained-of actions”).

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Accordingly, the Court dismisses the indirect infringement claims, both for failure to provide

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the requisite specificity regarding which components are at issue and failure to plead nonconclusory

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facts establishing a plausible claim of knowledge. As above, the dismissal is without prejudice such

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that Adams may have an opportunity to amend to address this deficiency.

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B.

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Trade Secret Misappropriation
Finally, Adams asserts a trade secrets claim which is based, not on California law, but rather

should be dismissed because (1) it is time barred; (2) there are insufficient jurisdictional allegations

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to support a claim under the Utah statute; and (3) the elements of a trade secret claim have not been

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adequately pled. The Court does not address the third argument because dismissal – with prejudice

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For the Northern District of California

on Utah law – i.e., the Utah Uniform Trade Secret Act. Wistron and AOpen argue that the claim

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United States District Court

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– is proper based on the first two arguments.

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Under Utah law, a claim for trade secret misappropriation has a limitations period of three

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years. Notably, the statute provides that “[a]n action for misappropriation shall be brought within

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three years after the misappropriation is discovered or, by the exercise of reasonable diligence,

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should have been discovered.” Utah Code Ann. § 13-24-7 (emphasis added). Here, Wistron and

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AOpen contend that Adams’s trade secret claim is untimely because its initial counterclaim

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containing a trade secret claim was filed on May 23, 2011, see Docket No. 34 (original

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counterclaim), and, according to Wistron and AOpen, Adams should have discovered their alleged

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misappropriation more than three years before this date. The Court agrees that the allegations in the

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counterclaims, judicially noticeable documents (i.e., opinions from another federal court in Utah),

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and Adams’s own opposition brief establish that Adams, by the exercise of reasonable diligence,

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should have discovered the alleged misappropriation more than three years before May 23, 2011.

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Cf. Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010)

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(noting that a claim may be dismissed as time barred under Rule 12(b)(6) when “‘the running of the

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statute is apparent on the face of the complaint’”).

Statute of Limitations

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According to Adams, it discovered – based on information acquired from two other lawsuits

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– that multiple computer and chip manufacturers in Taiwan and Asia had obtained unauthorized and

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company by the name of Winbond. As the federal court in Utah determined, Adams knew or at least

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had an extremely strong suspicion that Winbond had obtained a copy of the trade secrets by March

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2004. See Phillip M. Adams & Assocs., LLC v. Winbond Elecs. Corp., No. 1:05-CV-64 TS, 2010

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U.S. Dist. LEXIS 90491, at *15-16 (D. Utah August 31, 2010). Adams asserts in this litigation that

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Wistron and AOpen obtained the trade secrets at issue through use of Winbond’s chips. See Opp’n

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at 9. But given that Adams was on notice of Winbond’s misappropriation in March 2004, it should

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have discovered well before May 23, 2008 – more than four years later – that Wistron and AOpen

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used the Winbond chips. Adams maintains that it was not until 2010 that evidence came to light that

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the Winbond chips were being marketed, labeled, and sold under the marks of other companies. See

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For the Northern District of California

stolen copies of the alleged trade secrets. See Countercl. ¶ 97. One of those manufacturers was a

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United States District Court

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id. But this argument is problematic for the same reason articulated by the Utah district court – i.e.,

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Adams did not have to wait until there was a legal certainty that Wistron or AOpen or even other

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companies used the Winbond chips. See Winbond, 2010 U.S. Dist. LEXIS 90491, at *13-5. Once

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Adams was on notice of the Winbond chips, it should have discovered through a reasonably diligent

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investigation that other companies (such as Wistron and AOpen) used the chips. At the hearing

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herein, counsel for Wistron and AOpen pointed out that chips and other components are numbered

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or otherwise identifiable and that an exercise of reasonable diligence would have revealed any

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connection between the alleged Winbond trade theft and Wistron/AOpen. Counsel for Adams failed

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to meaningfully respond to the due diligence argument. The Court thus dismisses the claim for

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misappropriation. While it is inclined to do so with prejudice and thus bar any trade theft claim to

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which a three-year limitation period applies, see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)

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(stating that, “in dismissing for failure to state a claim under Rule 12(b)(6), ‘a district court should

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grant leave to amend even if no request to amend the pleading was made, unless it determines that

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the pleading could not possibly be cured by the allegation of other facts’”), the Court will dismiss on

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this ground without prejudice. Adams is forewarned, however, that any further assertion of a trade

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secret claim must be supported by specific factual allegations demonstrating why, even with

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reasonable diligence, Adams should not have known about Wistron’s and AOpen’s theft of trade

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secrets. Furthermore, Adams is forewarned that any factual allegations must be supportable under

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Federal Rule of Civil Procedure 11.

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Wistron and AOpen argue next that the Court should dismiss the trade secret claim because it

Jurisdictional Allegations

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is based on Utah law and, given the allegations in the counterclaims, there is no factual nexus to

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Utah – e.g., Adams has no connection to Adams has no connection to Utah (thus no injury was

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suffered there) and the alleged misappropriation took place in Asia. Wistron and AOpen assert that

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there is no indication that Utah intended for its laws to be given extraterritorial effect and that

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allowing the Utah law to be applied extraterritorially would be a violation of due process. In
response, Adams does not dispute the lack of a nexus to Utah and simply argues instead that the

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For the Northern District of California

United States District Court

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trade secret claim should not be dismissed because it does have a trade secret claim of some kind – if

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not pursuant to Utah law, then the law of another state. In support of its position, Adams cites C&F

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Packing Co. v. IBP, Inc., 224 F.3d 1296 (Fed. Cir. 2000).

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The problem for Adams is that C&F is distinguishable from the instant case. In C&F, the

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plaintiff had asserted a trade secret claim pursuant to Illinois law but the district court concluded that

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Kansas law was applicable and not Illinois law. The district court therefore dismissed the trade

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secrets claim. On appeal, the Federal Circuit noted that the plaintiff had presented sufficient facts to

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demonstrate that the trade secrets claim was plausible under the law of either Kansas or Illinois.

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(The plaintiff had argued in favor of Illinois law because the defendant transacted business there by

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operating Pizza Hut franchises in Illinois.) Therefore, the appeals court concluded that the district

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court should not have dismissed the claim but rather should have tried the case on the merits under

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whatever law it deemed appropriate. See id. at 1306. The instant case is different from C&F

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because there is nothing to indicate that Adams has a plausible claim under Utah law. If Utah law is

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not plausible, then dismissal is appropriate – and with prejudice.

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II.

CONCLUSION

For the foregoing reasons, the Court grants Wistron and AOpen’s motion to dismiss. More

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specifically, the following claims are dismissed: (1) the claim for direct infringement (against

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Wistron only); (2) the claim for indirect infringement (against both Wistron and AOpen); and (3) the

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claim for trade secret misappropriation (against both Wistron and AOpen). The trade secret claim

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under Utah law is dismissed with prejudice. Adams is given leave to amend the other dismissed

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claims, including the trade secret claim so long as not based upon Utah law. Any amended

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counterclaims must be filed within twenty (20) days of the date of this order. Adams is forewarned

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that any deficiency in the amended infringement claims may well justify a dismissal with prejudice.

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Because the Court is giving Adams an opportunity to amend its trade secret claim, it shall at

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this juncture deny – but without prejudice – Wistron and AOpen’s motion for Rule 11 sanctions

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based on the trade secrets claim. The hearing on the Rule 11 motion is therefore VACATED.

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This order disposes of Docket Nos. 52 and 78.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: September 12, 2011

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_________________________
EDWARD M. CHEN
United States District Judge

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