Streetspace, Inc v. Google, Inc. et al

Filing 49

MOTION to Dismiss by Admob, Inc, Apple, Inc., Google, Inc., Jumptap, Inc, Millennial Media, Inc, Navteq Corporation, Nokia Corporation, Nokia Inc, Quattro Wireless, Inc. (Attachments: # 1 Memo of Points and Authorities)(Rousseau, Timothy) (lmt).

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Kurt M. Kjelland (CSB 172076)
[e-mail]
GOODWIN PROCTER LLP
4365 Executive Drive
Third Floor
San Diego, CA 92121
Tel: [phone]
Fax: [phone]
Douglas J. Kline
[e-mail]
William A. Meunier
[e-mail]
GOODWIN PROCTER LLP
Exchange Place
53 State Street
Boston, MA 02109
Tel: [phone]
Fax: [phone]

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Timothy J. Rousseau
[e-mail]
GOODWIN PROCTER LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
[phone]
Fax: [phone]

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Attorneys for Defendant JUMPTAP, INC.
Additional parties and counsel listed in the signature block

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
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STREETSPACE, INC.,
Plaintiff,

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v.
GOOGLE INC., et al.
Defendants.

Case No: 3:10-cv-01757-LAB-MDD
MEMORANDUM IN SUPPORT OF
DEFENDANTS’ RULE 12(B)(6) MOTION TO
DISMISS
Date: May 9, 2011
Time: 11:15 a.m.
Judge: Hon. Larry Alan Burns

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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TABLE OF CONTENTS

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I.

SUMMARY OF ARGUMENT .......................................................................................... 1

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II.

BACKGROUND ................................................................................................................ 2

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III.

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STREETSPACE’S CLAIMS FOR INDIRECT INFRINGEMENT AGAINST ALL
DEFENDANTS, AND ALL CLAIMS AGAINST JUMPTAP AND MILLENNIAL,
SHOULD BE DISMISSED UNDER RULE 12(b)(6)........................................................ 4

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A.

Legal Standards....................................................................................................... 4

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B.

Streetspace’s Allegations of Direct Infringement Against Millennial Media and
Jumptap Should Be Dismissed Because They Do Not Identify Any Allegedly
Infringing Products or Services .............................................................................. 5

C.

Streetspace’s Indirect Infringement Allegations Are Insufficiently Stated and Fail
to Meet the Pleading Requirements of Twombly and Iqbal.................................... 7

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IV.

CONCLUSION................................................................................................................... 9

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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TABLE OF AUTHORITIES
Page(s)

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CASES
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Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009)..................................................................................................... passim
Associated Gen. Contractors of Cal., Inc. v. Carpenters,
459 U.S. 519 (1983)...................................................................................................................6
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)......................................................................................................... passim

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Bender v. LG Elecs. U.S.A., Inc.,
No. C-09-02114-JF, 2010 WL 889541 (N.D. Cal. Mar. 11, 2010) .......................................1, 5
Christopher v. Harbury,
536 U.S. 403 (2002)...................................................................................................................4
Franks Casing Crew & Rental Tools, Inc. v. Weatherford Int’l, Inc.,
389 F.3d 1370 (Fed. Cir. 2004)..................................................................................................6

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Gen-Probe, Inc. v. Amoco Corp.,
926 F. Supp. 948 (S.D. Cal. 1996).........................................................................................5, 6
Hackford v. Babbitt,
14 F.3d 1457 (10th Cir. 1994) ...................................................................................................8
Hewlett-Packard Co. v. Intergraph Corp.,
No. C 03-2517 MJJ, 2003 U.S. Dist. LEXIS 26092 (N.D. Cal. Sept. 6, 2003).....................5, 6
Interval Licensing LLC v. AOL, Inc.,
No. C10-1385, 2010 WL 5058620 (W.D. Wash. Dec. 10, 2010)..............................................1
Realtime Data, LLC v. Morgan Stanley,
No. 6:09CV326, 2010 WL 2403779 (E.D. Tex. June 10, 2010) ...........................................5, 6
Ricoh Co., Ltd. v. ASUSTeK Computer, Inc.,
481 F. Supp. 2d 954 (W.D. Wis. 2007) .....................................................................................1
Vita-Mix Corp. v. Basic Holding, Inc.,
581 F.3d 1317 (Fed. Cir. 2009)..................................................................................................8
Xpoint Techs. Inc. v. Microsoft Corp.,
No. 09-628, 2010 WL 3187025 (D. Del. Aug. 12, 2010)......................................................4, 8
STATUTES
35 U.S.C. § 271................................................................................................................................7
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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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OTHER AUTHORITIES

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Fed. R. Civ. P. 8.......................................................................................................................1, 4, 9

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Fed. R. Civ. P. 12................................................................................................................... passim

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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Defendants Google Inc. (“Google”); AdMob, Inc. (“AdMob”); Apple Inc. and Quattro

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Wireless, Inc. (collectively “Apple” ); Nokia Corporation, Nokia Inc. and Navteq Corporation

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(collectively the “Nokia Defendants”); Millennial Media, Inc. (“Millennial Media”); and

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JumpTap, Inc. (“Jumptap”) (collectively “Defendants”) move pursuant to Federal Rule of Civil

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Procedure 12(b)(6) to dismiss Plaintiff Streetspace, Inc.’s (“Streetspace”) First Amended

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Complaint for Patent Infringement (“First Amended Complaint”; Dkt. No. 30) for alleged

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infringement of U.S. Patent No. 6,847,969 (“the ’969 Patent”) for failure to state a claim upon

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which relief can be granted. The First Amended Complaint includes many of the same defects as

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Streetspace’s original Complaint (“Complaint”; Dkt. No. 1) and should be dismissed with

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prejudice without leave to amend.

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I.

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SUMMARY OF ARGUMENT
Streetspace’s First Amended Complaint fails to satisfy the pleading standards under

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Federal Rule of Civil Procedure 8(a), as articulated in Bell Atlantic Corp. v. Twombly, 550 U.S.

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544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Under Rule 8(a), the complaint must

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include “a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550

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U.S. at 555 n.3. This “demands more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555). This standard applies

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equally to complaints alleging patent infringement. See, e.g., Interval Licensing LLC v. AOL,

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Inc., No. C10-1385, 2010 WL 5058620 (W.D. Wash. Dec. 10, 2010) (“The Court disagrees with

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Plaintiff’s argument that Twombly and Iqbal do not apply to patent suits.”); Bender v. LG Elecs.

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U.S.A., Inc., No. C-09-02114-JF, 2010 WL 889541, at *5 (N.D. Cal. Mar. 11, 2010); Ricoh Co.,

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Ltd. v. ASUSTeK Computer, Inc., 481 F. Supp. 2d 954, 959 (W.D. Wis. 2007).

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The pleading standard for direct patent infringement under the Supreme Court’s Twombly

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and Iqbal decisions requires, at a minimum, the specific identification of the allegedly infringing

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products or services. Like Streetspace’s original Complaint, its First Amended Complaint fails

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to state a claim for direct infringement against Millennial Media and Jumptap because

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Streetspace again fails to identify a single Millennial Media or Jumptap product or service that

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allegedly infringes the ’969 Patent. Streetspace’s repeated failure to state a claim for direct
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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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infringement is no mere oversight—Streetspace cannot specify any Millennial Media or Jumptap

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service that directly infringes the ’969 Patent because each ’969 Patent claim requires a

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“terminal,” and neither Millennial Media nor Jumptap sells or otherwise provides a “terminal”

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with any of their services. As a result, Streetspace has now twice failed to state a claim for direct

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infringement against Millennial Media and Jumptap, and those claims should be dismissed with

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prejudice.

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Streetspace’s allegations of indirect infringement in the First Amended Complaint against

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all of the Defendants are also inadequate. Despite having a second bite at the apple, and limiting

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its allegations of indirect infringement to only the active inducement type (dropping its claims

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for the contributory infringement type of indirect infringement asserted in the original

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Complaint), Streetspace has still not adequately plead indirect infringement. In the First

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Amended Complaint, Streetspace includes many additional facts, some of which are possibly

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relevant, many of which are completely irrelevant and apparently intended only to cast the

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Defendants in a negative light. Importantly, Streetspace failed to include in the First Amended

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Complaint allegations of fact sufficient to allow the Court to draw a reasonable inference that

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any of the Defendants are liable for indirect infringement. Specifically, Streetspace has failed to

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plead any facts sufficient to allow the Court to draw a reasonable inference that any of the

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Defendants actually knew of the ’969 Patent prior to the filing of the suit.

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In light of such facially inadequate assertions of infringement, pursuant to Rule 12(b)(6),

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Defendants respectfully request that this Court dismiss (i) Streetspace’s direct infringement

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claims against Millennial Media and Jumptap, and (ii) Streetspace’s indirect infringement claims

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as to all of the Defendants.

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II.

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BACKGROUND
On August 23, 2010, Streetspace filed its original Complaint against Defendants for

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alleged infringement of the ’969 Patent. On January 18, 2011, Defendants timely filed a joint

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motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Streetspace’s Complaint

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for failure to state a claim upon which relief can be granted, or in the alternative, for a more

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definite statement pursuant to Rule 12(e). (Dkt. No. 21). In response, Streetspace improperly
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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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filed its First Amended Complaint on February 25, 2011, and its opposition to Defendants’

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motion on February 28, 2011 (Dkt. No. 32).

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On March 3, 2011, the Court entered an Order to Show Cause, ordering Streetspace to

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show “why its amended complaint should not be stricken from the docket, and why the pending

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motions to dismiss and transfer venue should not remain on the Court’s calendar for a March 14,

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2011 hearing.” (Dkt. No. 35 at 2.) On March 4, 2011, Streetspace filed its response to the Order

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to Show Cause, asserting that “[t]he proposed First Amended Complaint was inadvertently filed

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without leave”, and requested leave to file it. (Dkt. No. 39 at 2.) Defendants filed their reply in

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support of their motion on March 7, 2011 (Dkt. No. 42). On March 8, 2011, the Court granted

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Streetspace leave to file the First Amended Complaint, and denied Defendants’ motion to

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dismiss as moot. (Dkt. No. 43.)

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Streetspace alleges in its First Amended Complaint that it owns and has standing to sue

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for infringement of the ’969 Patent. First Amended Compl. ¶ 51. A review of the ’969 Patent

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shows that, among other limitations, each independent claim recites a “terminal . . . [having] an

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identification code,” a “database,” and “a program for displaying personalized information” or

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otherwise “providing selected advertisement and online services to said consumer.” ’969 Patent

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claims 1, 12, and 19 (emphasis added).

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As to Millennial Media and Jumptap, Streetspace does not name or otherwise specify a

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single product or service that purportedly infringes its patent. Instead, just as in the original

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Complaint, Streetspace makes a vague assertion of direct infringement against “a method and/or

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system for providing personalized information and/or targeted online advertising services based

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on location, consumers’ profiles and/or usage history.” Id. ¶¶ 175-179, 189-194. This

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boilerplate recitation of certain limited aspects of the ’969 Patent leaves Millennial Media and

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Jumptap to speculate as to what product or service is actually at issue in the suit.

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As for its deficient indirect infringement allegations, Streetspace alleges with respect to

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Google, for example, that “Google has had actual knowledge of the ’969 patent since at least

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August 23, 2010”, i.e., the filing date of the original Complaint. First Amended Compl. ¶ 72.

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Similar allegations of indirect infringement are made against the other Defendants. Id. ¶¶ 90, 91,
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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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109, 110, 123, 124, 138, 139, 152, 153, 167, 168, 181, 182, 196, and 197. But knowledge of the

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patent after the filing of a complaint is not sufficient for pleading the requisite knowledge for

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indirect infringement. See Xpoint Techs. Inc. v. Microsoft Corp., No. 09-628, 2010 WL

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3187025, *6 (D. Del. Aug. 12, 2010).

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III.

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STREETSPACE’S CLAIMS FOR INDIRECT INFRINGEMENT AGAINST ALL
DEFENDANTS, AND ALL CLAIMS AGAINST JUMPTAP AND MILLENNIAL,
SHOULD BE DISMISSED UNDER RULE 12(b)(6)

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A.

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A complaint must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, Rule 8 “does not unlock the

Legal Standards

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doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S. Ct.

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at 1950. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

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elements of a cause of action will not do.’” Id. at 1949 (citing Twombly, 550 U.S. at 555).

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Unless the plaintiff has pleaded “enough facts to state a claim to relief that is plausible on its

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face,” and thereby “nudged [his] claims . . . across the line from conceivable to plausible,” the

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complaint “must be dismissed.” Twombly, 550 U.S. at 570 (dismissing complaint pursuant to

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Fed. R. Civ. P. 12(b)(6)).

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In considering a motion to dismiss under Rule 12(b)(6), a court must assume all factual

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allegations in a complaint as true and view them in the light most favorable to the plaintiff.

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Christopher v. Harbury, 536 U.S. 403, 406 (2002). However, pleadings containing “no more

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than conclusions[] are not entitled to the assumption of truth.” Iqbal, 129 S. Ct. at 1950. Only

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when there are “well-pleaded factual allegations” may a court “assume their veracity and then

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determine whether they plausibly give rise to an entitlement to relief.” Id. A claim has facial

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plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Id. at 1949 (citing Twombly,

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550 U.S. at 556). The “sheer possibility that a defendant has acted unlawfully” is insufficient.

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Id. Such a complaint “has alleged—but has not ‘show[n]’—‘that the pleader is entitled to

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relief.’” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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B.

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Streetspace’s Allegations of Direct Infringement Against Millennial Media
and Jumptap Should Be Dismissed Because They Do Not Identify Any
Allegedly Infringing Products or Services

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Following Iqbal, a complaint must “at a minimum, [include] a brief description of what

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the patent at issue does, and an allegation that certain named and specifically identified products

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or product components also do what the patent does, thereby raising a plausible claim that the

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named products are infringing.” LG Elecs., 2010 WL 889541, at *6. Applying Twombly and

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Iqbal, the court in LG Electronics reasoned that only with a brief description of the patent and an

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allegation of specifically identified products that fits the description of what the patent does,

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would the pleading “provide enough specificity for the defendant to formulate a response,” and

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“permit the Court to ‘draw the reasonable inference that the defendant is liable for the

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misconduct alleged.’” Id. (citing Iqbal, 129 S. Ct. at 1949).

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With respect to the patent infringement allegations against Millennial Media and

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Jumptap, Streetspace has failed to identify a single infringing service. Streetspace’s general

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assertion of infringement against Millennial Media and Jumptap “for providing personalized

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information and/or targeted online advertising services based on location, consumers’ profiles

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and/or usage history,” is far too vague to state a claim of patent infringement that is “plausible on

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its face.” Iqbal, 129 S. Ct. at 1949.

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This court and others have properly dismissed patent infringement claims where plaintiffs

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have not identified specific products or services. See, e.g., Gen-Probe, Inc. v. Amoco Corp., 926

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F. Supp. 948, 962 (S.D. Cal. 1996) (granting Rule 12(b)(6) dismissal because “pointing vaguely

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to ‘products and/or kits’ . . . does not provide adequate notice as required by the Rules, and does

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not reflect the reasonable inquiry required by the Rules”); LG Elecs., 2010 WL 889541, at *4

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(requiring plaintiff to specifically identify allegedly infringing products and finding list of

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allegedly infringing product types to be insufficient); Hewlett-Packard Co. v. Intergraph Corp.,

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No. C 03-2517 MJJ, 2003 U.S. Dist. LEXIS 26092, at *6 (N.D. Cal. Sept. 6, 2003) (dismissing

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plaintiff’s complaint that defendant’s “software and hardware products” infringed the patent

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because the allegations did not provide defendant with “fair notice” as to what claims to defend);

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Realtime Data, LLC v. Morgan Stanley, No. 6:09CV326, 2010 WL 2403779, at *5 (E.D. Tex.
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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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June 10, 2010) (granting Rule 12(b)(6) dismissal because plaintiff’s allegations did not

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“specifically identify any accused products or services” and finding the identification of “data

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compression products and/or services” too vague).

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By failing to identify any specific service, Streetspace has not put Millennial Media and

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Jumptap on fair notice as to what services are subject to the infringement claim. Streetspace’s

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allegations against Millennial Media and Jumptap are even more vague than the allegations at

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issue in Gen-Probe, LG Electronics, Hewlett-Packard and Realtime Data. As the Supreme

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Court has cautioned, “a district court must retain the power to insist upon some specificity in

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pleading before allowing a potentially massive factual controversy to proceed.” Associated Gen.

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Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 528 n.17 (1983). Millennial Media and

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Jumptap should not be required to engage in a time-consuming investigation without knowing

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the specific services alleged to infringe the ’969 Patent. As such, the court should at a minimum

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dismiss the First Amended Complaint against Millennial Media and Jumptap.

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Moreover, the dismissal should be with prejudice. In granting Streetspace leave to file an

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amended complaint in the face of the Defendants’ first motion to dismiss, the Court already has

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provided Streetspace the opportunity to amend its complaint to fix the foregoing deficiencies.

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Streetspace’s First Amended Complaint, however, still does not specify any service provided by

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Millennial Media or Jumptap that directly infringes the ’969 Patent. It cannot because direct

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infringement “requires that each and every limitation set forth in a claim appear in an accused

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product,” Franks Casing Crew & Rental Tools, Inc. v. Weatherford Int’l, Inc., 389 F.3d 1370,

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1378 (Fed. Cir. 2004) (internal citation omitted). Among other limitations, each claim in the

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’969 patent requires a “terminal.” ’969 patent claims 1, 12, and 19. Neither Millennial Media

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nor Jumptap sells, uses, or otherwise provides a “terminal” when providing any of their services

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to their customers. Thus, even under Streetspace’s incorrect and baseless apparent construction

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of “terminal,” it cannot identify any specific service provided by Millennial Media or Jumptap

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that includes a “terminal”. Indeed, as admitted in the First Amended Complaint, the alleged

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“terminal” is provided and used by the consumer, not Millennial Media or Jumptap:

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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“Streetspace is informed and believes and based thereon alleges that Millennial

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Media utilizes server software and/or tracking cookies located on consumer

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terminals in order to identify consumers and target ads.” First Amended Compl. ¶

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179.
•

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“Streetspace is informed and believes and based thereon alleges that Jumptap

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utilizes server software and/or tracking cookies located on consumer terminals in

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order to identify consumers and target ads.” First Amended Compl. ¶ 194.

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Thus, although Streetspace alleges that Millennial Media and Jumptap directly infringe

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the ’969 Patent by “providing [some unspecified] services,” it does not and cannot identify any

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specific service provided by these defendants in which Millennial Media and Jumptap sell, use,

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offer or otherwise provide the required “terminal.” Streetspace has not stated and cannot state a

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claim for direct infringement against Millennial Media and Jumptap, and those claims should be

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dismissed with prejudice.

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C.

Streetspace’s Indirect Infringement Allegations Are Insufficiently Stated and
Fail to Meet the Pleading Requirements of Twombly and Iqbal

Streetspace also fails to sufficiently allege claims for inducement under 35 U.S.C.

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§ 271(b). The First Amended Complaint does not adequately allege the requisite pre-filing

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knowledge of the ’969 Patent on the part of any Defendant.

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There are two types of indirect patent infringement: active inducement under 35 U.S.C.

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§ 271(b) and contributory infringement under 35 U.S.C. § 271(c). In its original Complaint,

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Streetspace accused all Defendants of both types of indirect infringement. Now, with its First

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Amended Complaint, Streetspace has not asserted any claim for contributory infringement, but

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still asserts a claim for active inducement against each Defendant. Despite having had the

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benefit of a do-over with its First Amended Complaint, Streetspace has still failed to plead any

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facts that would allow a court to draw a reasonable inference that any of the Defendants is liable

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for indirect infringement. Accordingly, Streetspace’s allegations “do not suffice,” and its First

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Amended Complaint should be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a

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claim upon which relief can be granted, at least as to all claims for indirect infringement.
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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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“Inducement requires a showing that the alleged inducer knew of the patent¸ knowingly

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induced the infringing acts, and possessed a specific intent to encourage another’s infringement

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of the patent.” Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1328 (Fed. Cir. 2009)

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(citing DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1304 (Fed. Cir. 2006 (en banc in relevant

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part) (emphasis added). Streetspace admits that it had no factual basis to allege that any of the

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Defendants knew of the ’969 Patent prior to the filing of the Complaint, and that it can allege

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only that “Defendants knew of the ’969 patent since at least August 23, 2010 (the filing date of

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the original complaint).” (Response to Order to Show Cause, Dkt. No. 39, at 3). But that

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allegation is inadequate as a matter of law: “knowledge after filing of the present action is not

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sufficient for pleading the requisite knowledge for indirect infringement.” Xpoint Techs. Inc., v.

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Microsoft Corp., No. 09-628, 2010 WL 3187025, *6 (D. Del. Aug. 12, 2010) (emphasis added)

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(citing Mallinckrodt v. E-Z-Em, Inc., 670 F.Supp.2d 349, 354 n.1 (D. Del. 2009)). If the law

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were otherwise, a plaintiff could fabricate a claim of indirect patent infringement simply by

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filing a complaint, and then—perhaps the next day—filing an amended complaint alleging that

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Defendants were on notice of the patent-in-suit at least as early as the date of the original

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complaint. Thus, by its own admissions, Streetspace has not and cannot plead a legally sufficient

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claim for indirect infringement against any Defendant.

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As to Google, Streetspace asserts that:

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Streetspace is informed and believes and based thereon alleges that Google
operates a search engine and database called Google Patents comprising patents
and published patent applications from the United States Patent & Trademark
Office. All of the approximately 7 million U.S. patents have been put in the
database including the ’969 patent.

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First Amended Compl. ¶ 72. But the mere presence of the ’969 Patent within the comprehensive

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Google Patents database is not sufficient to support a reasonable inference that anyone at Google

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actually was aware of the existence of the ’969 Patent. Thus, this factual assertion is not

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sufficient to support any inference that Google had actual awareness of the ’969 Patent prior to

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the filing of the Complaint. See, e.g., Twombly, 550 U.S. at 555, 570 (holding that a complaint

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must “raise a right to relief above the speculative level” and must “state a claim to relief that is

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plausible on its face.”); Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994) (holding that
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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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federal courts “are not bound by conclusory allegations, unwarranted inferences, or legal

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conclusions” stated in a complaint).

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Streetspace asserts that it should, nonetheless, be entitled to a discovery fishing

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expedition because “it remains to be seen whether any Defendant actually knew of the ’969

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patent . . . , which will be the subject of discovery.” (Response at 3.) But “remains to be seen” is

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not a cognizable placeholder allowing Streetspace to take discovery to ascertain whether the

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Defendants had any knowledge of the ’969 Patent prior to Streetspace’s Complaint. Either

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Streetspace can plead that Defendants had the requisite knowledge of the ’969 Patent at the time

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it filed the original Complaint, or it cannot. The pleading standard under Rule 8 “does not

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unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal,

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129 S. Ct. at 1950. By admitting that it does not have any factual basis to allege that Defendants

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knew of the ’969 Patent prior to the filing of the original Complaint, Streetspace’s allegations are

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nothing more than “formulaic recitations of the elements” and specifically prohibited by the

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Supreme Court. Twombly, 550 U.S. at 555. Further, because by Streetspace’s own admissions

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that “it remains to be seen whether any Defendant actually knew of the ’969 patent,” (Response

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at 3), any amendment would be futile and the inducement claims should be dismissed with

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prejudice.

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IV.

CONCLUSION

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Streetspace’s First Amended Complaint does not and cannot state a claim for direct

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infringement against defendants Millennial Media and Jumptap, and those claims should be

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dismissed with prejudice. In addition, Streetspace’s First Amended Complaint does not and

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cannot to state a claim for indirect patent infringement upon which relief can be granted against

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any of the Defendants, and those claims should be dismissed without leave to amend.

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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Dated: March 22, 2011

By: /s/ Timothy J. Rousseau
Kurt M. Kjelland (CSB 172076)
[e-mail]
GOODWIN PROCTER LLP
4365 Executive Drive
Third Floor
San Diego, CA 92121
Tel: [phone]
Fax: [phone]
Douglas J. Kline
[e-mail]
William A. Meunier
[e-mail]
GOODWIN PROCTER LLP
Exchange Place
53 State Street
Boston, MA 02109
Tel: [phone]
Fax: [phone]

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Timothy J. Rousseau
[e-mail]
GOODWIN PROCTER LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant JUMPTAP, INC.

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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/s/ Christopher C. Campbell
John S. Kyle (CA 199196)
[e-mail]
COOLEY LLP
4401 Eastgate Mall
San Diego, CA 92121
Tel: [phone]
Fax: [phone]
Frank V. Pietrantonio
[e-mail]
Christopher C. Campbell
[e-mail]
COOLEY LLP
One Freedom Square
11951 Freedom Drive
Reston, VA 20190-5656
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
MILLENNIAL MEDIA, INC.

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/s/ Luann L. Simmons
George A. Riley (SB# 118304)
[e-mail]
Luann L. Simmons (SB# 203526)
[e-mail]
Anne E. Huffsmith (SB# 236438)
[e-mail]
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
Attorneys for Defendants APPLE INC. and
QUATTRO WIRELESS, INC.

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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/s/ David Heskel Ben-Meir
David Heskel Ben-Meir (CSB 192028)
[e-mail]
ALSTON & BIRD LLP
333 South Hope Street, 16th Floor
Los Angeles, CA 90071
Tel: [phone]
Fax: [phone]
Attorney for Defendants NOKIA, INC., NOKIA
CORPORATION and NAVTEQ, INC.

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/s/ Shawn E. McDonald
Matthew B. Lowrie
[e-mail]
FOLEY & LARDNER LLP
111 Huntington Avenue, Suite 2600
Boston, MA 02119-7610
Tel: [phone]
Fax: [phone]
Shawn E. McDonald (CSB 237580)
[e-mail]
Justin E. Gray
[e-mail]
FOLEY & LARDNER LLP
3579 Valley Centre Drive, Suite 300
San Diego, CA 92130
Tel: [phone]
Fax: [phone]
Attorneys for Defendants
GOOGLE INC. and ADMOB, INC.

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD

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CERTIFICATE OF SERVICE

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The undersigned hereby certifies that a true and correct copy of the above and foregoing

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document has been served on March 22, 2011, to all counsel of record who are deemed to have

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consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any

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counsel of record who have not consented to electronic service through the Court’s CM/ECF

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system will be served by electronic mail, first class mail, facsimile and/or overnight delivery.

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Timothy J. Rousseau
Timothy J. Rousseau

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MEMORANDUM IN SUPPORT OF DEFENDANTS’ RULE 12(B)(6) MOTION TO DISMISS
CASE NO. 3:10-CV-01757-LAB-MDD