Golden v. Google LLC

Filing 41

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING 11 MOTION TO DISMISS WITH LEAVE TO AMEND.Amended Pleadings due by 9/7/2023. **This Order DENIES AS MOOT WITHOUT PREJUDICE Docket Nos. 12 , 17 , 18 , and 19 .**(ndr, COURT STAFF) (Filed on 8/10/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LARRY GOLDEN,
Plaintiff,

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v.

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ORDER GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND
Re: Dkt. No. 11

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GOOGLE LLC,
Defendant.

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United States District Court
Northern District of California

Case No. 22-cv-05246-HSG

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Pending before the Court is Google’s motion to dismiss. Dkt. No. 11 (“MTD”). In

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response to the motion, pro se plaintiff Larry Golden filed a “Response to Defendant’s Motion to

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Dismiss and Cross-Motion for Summary Judgment.” Dkt. No. 18 (“MTD Opp. and Cross-MSJ”).

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Google filed a reply to its motion to dismiss (Dkt. No. 20) and an opposition to Plaintiff’s cross-

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motion for summary judgment (Dkt. No. 22). Plaintiff filed a reply to his cross-motion for

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summary judgment. Dkt. No. 26. The Court finds this matter appropriate for disposition without

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oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons

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discussed below the Court GRANTS WITH LEAVE TO AMEND Google’s motion to dismiss

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and DENIES AS MOOT Plaintiff’s cross-motion for summary judgment WITHOUT

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PREJUDICE.1

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Also pending before the Court are Google’s motion to strike (Dkt. No. 12) and Mr. Golden’s
motion for permanent injunctive relief (Dkt. No. 17) and cross-motion to strike (Dkt. No. 19).
Because this order dismisses the complaint with leave to amend, these motions are deemed
submitted and are DENIED AS MOOT WITHOUT PREJUDICE. The Court suggests that
Defendant carefully consider whether to renew the motion to strike if an amended complaint is
filed, as such motions are often a poor use of judicial and party resources. See Z.A. ex rel. K.A. v.
St. Helena Unified Sch. Dist., No. C 09-03557 JSW, 2010 WL 370333, at *2 (N.D. Cal. Jan. 25,
2010) (explaining that “[m]otions to strike are regarded with disfavor because they are often used
as delaying tactics and because of the limited importance of pleadings in federal practice”).
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I.

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FACTUAL BACKGROUND
In 2021, Mr. Golden filed a similar case against Google in South Carolina concerning the

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same patents-in-suit. See Golden v. Google, No, 21-244, Dkt. No. 1 (D.S.C. Jan 26, 2021).2 The

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district court dismissed without leave to amend. Golden v. Google, LLC, No. 6:21-CV-00244-JD4
KFM, 2021 WL 5083804, at *3 (D.S.C. Nov. 2, 2021), vacated and remanded sub nom. Golden v.
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Apple Inc., No. 2022-1229, 2022 WL 4103285 (Fed. Cir. Sept. 8, 2022). The Federal Circuit
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vacated the dismissal, stating that its decision “[did] not preclude subsequent motions to dismiss
by the defendant for failure to state a claim or for summary judgment,” and “expresse[d] no

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opinion as to the adequacy of the complaint or claim chart except that it is not facially frivolous.”
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Golden v. Apple Inc., No. 2022-1229, 2022 WL 4103285, at *2 (Fed. Cir. Sept. 8, 2022).
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Within a week of the Federal Circuit’s decision, Plaintiff filed this case.3 Plaintiff brings

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United States District Court
Northern District of California

three counts of patent infringement, alleging that Google infringed U.S. Patent Nos. 10,163,287
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(“’287 Patent”), 9,589,439 (“’439 Patent”), and 9,096,189 (“’189 Patent”). See generally Dkt. No.
1 (“Compl.”). The Complaint alleges that several Google smartphones infringe the patents and
that Google sells a “material component of something that is patented (i.e., Plaintiff’s CMDC
devices).”4 See Compl. at 2; id. ¶¶ 13-14. Plaintiff further alleges that “Google and Apple are
jointly infringing Plaintiff’s patented CMDC devices by offering for use, using, offering for sale,
selling and/or importing as essential, Google’s Search for use with Google and Apple

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smartphones,” in a manner that directly infringes several claims of each of the patents-in-suit. See
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id. ¶ 24. Plaintiff makes similar claims of joint infringement regarding Google and Qualcomm.
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See id. ¶ 35.
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Google now moves to dismiss, arguing that Plaintiff fails to allege direct or indirect
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infringement. See generally MTD.
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This Court has previously described Mr. Golden’s extensive litigation history and will not repeat
it here. See Golden v. Qualcomm, Inc., No. 22-CV-03283-HSG, 2023 WL 2530857, at *1 (N.D.
Cal. Mar. 15, 2023).
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In April 2023, the District of South Carolina dismissed the case before it without prejudice
because it was duplicative of this case. See Golden v. Google, No, 21-244, Dkt. No. 44 (D.S.C.
April 19, 2023).
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Plaintiff defines “CMDC devices” as “communicating, monitoring, detecting, and controlling”
devices. See Compl. at 7.
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II.

LEGAL STANDARD
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A

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defendant may move to dismiss a complaint for failing to state a claim upon which relief can be
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granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the

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complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.”
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Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule
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12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible

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on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible
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when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

United States District Court
Northern District of California

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In reviewing the plausibility of a complaint, courts “accept factual allegations in the

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complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”
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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless,
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courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of

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fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir.
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2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).
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The Court also need not accept as true allegations that contradict matter properly subject to
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judicial notice or allegations contradicting the exhibits attached to the complaint. Sprewell, 266
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F.3d at 988. And even where facts are accepted as true, “a plaintiff may plead [him]self out of
court” if he “plead[s] facts which establish that he cannot prevail on his ... claim.” Weisbuch v.

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Cty. of Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (quotation omitted).
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Additionally, “[p]leadings must be construed so as to do justice.” Fed. R. Civ. P. 8(e).
“[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than

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formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation
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omitted). However, even a “liberal interpretation of a . . . complaint may not supply essential
elements of the claim that were not initially pled.” See Ivey v. Bd. of Regents of Univ. of Alaska,
673 F.2d 266, 268 (9th Cir. 1982). “[P]ro se litigants are bound by the rules of procedure,”

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Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995), which require “a short and plain statement of

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the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a).
Even if the court concludes that a 12(b)(6) motion should be granted, the “court should

United States District Court
Northern District of California

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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.” Lopez v. Smith, 203

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F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quotation omitted).

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III.

DISCUSSION

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A.

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Google argues that “Mr. Golden alleges that some Google Pixel devices could infringe his

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asserted patents if a user were to add an additional application, ATAK, which Mr. Golden admits

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that Google does not make or sell.” MTD at 6 (emphasis in original). Google contends that “Mr.

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Golden thus alleges not that Google sells infringing Pixel devices, but that someone else could

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modify Google’s Pixel devices, by adding non-Google software, to make them allegedly

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infringing.” Id. (emphasis in original). Google argues that these allegations are not sufficient to

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support an infringement claim. Id. The Court agrees.

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Direct Infringement

“[T]hat a device is capable of being modified to operate in an infringing manner is not

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sufficient, by itself, to support a finding of infringement.” Telemac Cellular Corp. v. Topp

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Telecom, Inc., 247 F.3d 1316, 1330 (Fed. Cir. 2001). The Federal Circuit has made it clear that its

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precedent “does not stand for the proposition . . . that infringement may be based upon a finding

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that an accused product is merely capable of being modified in a manner that infringes the claims

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of a patent.” Fantasy Sports Properties, Inc. v. Sportsline.com, Inc., 287 F.3d 1108, 1117–18

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(Fed. Cir. 2002). At bottom, “a device does not infringe simply because it is possible to alter it in

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a way that would satisfy all the limitations of a patent claim.” High Tech Med. Instrumentation,

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Inc. v. New Image Indus., Inc., 49 F.3d 1551, 1555 (Fed. Cir. 1995). The Federal Circuit has

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applied this principle in cases involving the modification of hardware through the addition of

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software. See Nazomi Commc’ns, Inc. v. Nokia Corp., 739 F.3d 1339, 1346 (Fed. Cir. 2014)

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(finding that the defendants’ products “do not infringe without modification—the modification of

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installing the required software”).
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Even under the “less stringent standards” afforded pro se plaintiffs, Erickson, 551 U.S. at

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94 (quotation omitted), Plaintiff’s claims, as pled, only allege that Google’s devices infringe the

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patents in issue if the end user downloads a particular application. Plaintiff includes a claim chart

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purporting to describe the components of the Google Pixel 5 (which Plaintiff asserts is

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“representative of all the alleged infringing products of Google asserted in this complaint”) that

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allegedly map onto the elements of an independent claim for each of the asserted patents.5 See

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Compl. ¶ 53. As the below excerpt of Plaintiff’s chart indicates, however, at least two elements of

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each independent claim included in the chart are allegedly satisfied only when the phone has the

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Android Team Awareness Kit (ATAK) downloaded.

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Google Pixel 5
Smartphone

United States District Court
Northern District of California

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Android Team
Awareness Kit, ATAK
(built on the Android
operating system)
provides for a single
interface for viewing and
controlling different
CBRN-sensing
technologies, whether
that is a wearable
smartwatch that
measures a warfighter’s
vitals (e.g., heart rate) or
a device mounted on a
drone to detect chemical
warfare agents.
Android Team
Awareness Kit, ATAK
(built on the Android
operating system) is a
digital application
available to warfighters

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Patent #:
Patent #: 9,589,439; Patent # 9,096,189;
10,163,287;
Independent Claim Independent Claim
Independent Claim
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at least one sensor for the cell phone is at
the communication
chemical, biological,
least a fixed,
device is at least a
or human detection in
portable or mobile
fixed, portable or
communication with
communication
mobile
the at least one CPU;
device
communication
interconnected to the
device
cell phone detection interconnected to a
device, capable of
fixed, portable or
wired or wireless
mobile product,
communication
capable of wired or
therebetween; and
wireless
communication
therebetween . . .

one or more detectors
in communication
with the at least one
CPU for detecting at
least one of chemical,
biological,

at least one of a
chemical sensor, a
biological sensor, an
explosive sensor, a
human sensor, a
contraband sensor,

wherein the
communication
device receives a
signal via any of
one or more
products listed in

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In addition to the independent claims included in the claim chart, Plaintiff also alleges
infringement of independent claims 4 and 6 of the ’287 patent, 13, 14, and 15 of the ’439 patent,
and 2 and 3 of the ’189 patent. See Compl. ¶¶ 42, 46, 50. But he provides no detail whatsoever
about his theory of infringement for these claims.
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throughout the DoD.
ATAK offers warfighters
geospatial mapping for
situational awareness
during combat—on an
end-user device such as a
smartphone or a tablet.
With DTRA’s
contribution, ATAK now
includes chemical,
biological, radiological,
and nuclear (CBRN)
plug-ins.

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radiological, or
explosive agents;

or a radiological
sensor capable of
being disposed
within, on, upon or
adjacent the cell
phone;

any of the plurality
of product grouping
categories;

See Compl. ¶ 53 at 23, 26-27.
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Even affording Plaintiff the benefit of the doubt, his own claim chart makes it clear that
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Defendant’s products purportedly infringe because of the characteristics of the ATAK application.

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United States District Court
Northern District of California

But Plaintiff’s complaint alleges that ATAK is not made by Google, and he does not allege that
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ATAK comes pre-loaded on Google phones:
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Through collaboration and innovation, the Defense Threat Reduction
Agency has integrated its powerful, hazard-awareness-and-response
tools into the Android Tactical Assault Kit (or the Android Team
Awareness Kit, ATAK). ATAK is a digital application available to
warfighters throughout the DoD. Built on the Android operating
system, ATAK offers warfighters geospatial mapping for situational
awareness during combat — on an end-user device such as a
smartphone or a tablet. With DTRA’s contribution, ATAK now
includes chemical, biological, radiological, and nuclear (CBRN)
plug-ins.

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See Compl. ¶ 18 at 13 (emphasis in original). Accordingly, the Court finds that Plaintiff fails to

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adequately allege direct infringement by Google.6

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B.

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“There are two types of indirect patent infringement: inducement and contributory

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infringement.” Redd Grp., LLC v. Glass Guru Franchise Sys., Inc., No. 12-CV-04070-JST, 2013

Indirect Infringement

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Plaintiff does not engage directly with Google’s argument in his opposition. Instead, he argues
that Google’s motion to dismiss is barred by “issue preclusion” as a result of the 2022 appeal to
the Federal Circuit (and the underlying South Carolina case). See MTD Opp. and Cross-MSJ at
1, 5-6. In its opinion, however, the Federal Circuit specifically stated that its “decision does not
preclude subsequent motions to dismiss by the defendant for failure to state a claim.” Golden v.
Apple Inc., No. 2022-1229, 2022 WL 4103285, at *2 (Fed. Cir. Sept. 8, 2022). Issue preclusion
does not bar Google’s motion to dismiss.
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WL 3462078, at *4 (N.D. Cal. July 8, 2013) (citing 35 U.S.C. §§ 271(b)-(c)). “Liability for either

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active inducement of infringement or for contributory infringement is dependent upon the

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existence of direct infringement,” and “[t]here can be no inducement or contributory infringement

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without an underlying act of direct infringement.” Linear Tech. Corp. v. Impala Linear Corp.,

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379 F.3d 1311, 1326 (Fed. Cir. 2004) (quotations omitted).
Because Plaintiff fails to allege direct infringement, the Court finds that he also fails to

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United States District Court
Northern District of California

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allege indirect infringement. Id.

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C.

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Google asks the Court to deny leave to amend “because Mr. Golden’s infringement theory

Leave to Amend

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confirms that amendment would be futile.” MTD at 8. The Court cannot say at this stage that

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amendment necessarily would be futile, and so follows the standard course of granting leave for

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Plaintiff to amend to correct the identified deficiencies, if he can truthfully do so.

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IV.

CONCLUSION

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Google’s motion to dismiss (Dkt. No. 11) is GRANTED WITH LEAVE TO AMEND.

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Any amended complaint must be filed within 28 days from the date of this Order.

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Google’s motion to strike (Dkt. No. 12), and Mr. Golden’s cross-motion for summary

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judgment (Dkt. No. 18), motion for permanent injunctive relief (Dkt. No. 17), and cross-motion

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to strike (Dkt. No. 19) are DENIED AS MOOT WITHOUT PREJUDICE to being re-filed if

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the case proceeds beyond the motion to dismiss stage.

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The Court further STRIKES Dkt. No. 36, styled as Plaintiffs’ objection to Defendants’

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requests regarding case management conference scheduling, and Dkt. Nos. 39 and 40, Plaintiffs’

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purported “supplemental authority,” for failure to comply with Civil L.R. 7-3 (directing that, with

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limited exceptions, “[o]nce a reply is filed, no additional memoranda, papers or letters may be

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filed without prior Court approval”).
Finally, in light of the number and length of Plaintiff’s filings that have not complied with

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this District’s Local Rules, it is further ORDERED that unless and until otherwise ordered,

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Plaintiff may not file any document other than the amended complaint discussed above without

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advance leave of Court.
IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated:

8/10/2023
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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