EON Corp. IP Holdings LLC v. FLO TV Incorporated et al

Filing 105

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 7/12/2011. (nmf)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

EON CORP. IP HOLDINGS LLC
Plaintiff,
v.
FLO lV INC., et aL,
Defendants.

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) Civ. No. 10-812-SLR
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Gregory Brian Williams, Esquire of Fox Rothschild LLP, Wilmington, Delaware.
Counsel for Plaintiff. Of Counsel: Cabrach J. Connor, Esquire, Daniel R. Scardino,
Esquire and Jeffery R. Johnson, Esquire of Reed & Scardino LLP.
Lauren E. Maguire, Esquire and Andrew Colin Mayo, Esquire of Ashby & Geddes, P.A.,
Wilmington, Delaware. Counsel for Defendant Cellco Partnership. Of Counsel: Kevin
P. Anderson, Esquire and Karin A. Hessler, Esquire of Wiley Rein LLP.
David Ellis Moore, Esquire of Potter Anderson & Corroon, LLP, Wilmington, Delaware.
Counsel for Defendant FLO lV Inc.
Karen Jacobs Louden, Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington,
Delaware. Counsel for Defendants HTC America Inc. and Sprint Nextel Corp. Of
Counsel for Defendant HTC America Inc.: Heidi L. Keefe, Esquire, Mark R. Weinstein,
Esquire and Kyle D. Chen, Esquire of Cooley LLP.
Steven J. Balick, Esquire, Lauren E. Maguire, Esquire and Andrew Colin Mayo, Esquire
of Ashby & Geddes, P.A., Wilmington, Delaware. Counsel for Defendants Kyocera
Communications Inc. and LetsTalk.com Inc. Of Counsel for Defendant Kyocera
Communications Inc.: Robert J. Benson, Esquire, Richard de Bodo, Esquire and
Patrick Park, Esquire of DLA Piper. Of Counsel for Defendant LetsTalk.com Inc.:
Daniel J. Bergeson, Esquire, Mindy M. Morton, Esquire and Jaideep Venkatesan,
Esquire of Bergeson, LLP.
Thomas Lee Halkowski, Esquire of Fish & Richardson, P.C., Wilmington, Delaware.
Counsel for Defendant LG Electronics MobileComm USA Inc.
Edmond D. Johnson, Esquire of Pepper Hamilton LLP, Wilmington, Delaware. Counsel
for Defendant GolV Networks Inc. Of Counsel: Christopher C. Campbell, Esquire and
Nelson Kuan, Esquire of Cooley LLP.

Brian E. Farnan, Esquire of Farnan LLP, Wilmington, Delaware. Counsel for Defendant
MobiTV Inc. Of Counsel: Bob Steinberg, Esquire and Ryan E. Hatch, Esquire of
Latham & Watkins LLP.
Jack B. Blumenfeld, Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington,
Delaware. Counsel for Defendant Motorola Mobility Inc. Of Counsel: Steven D.
Moore, Esquire and Bret T. Winterle, Esquire of Kilpatrick Townsend & Stockton LLP.
Francis DiGiovanni, Esquire and Chad S.C. Stover, Esquire of Connolly, Bove, Lodge &
Hutz LLP, Wilmington, Delaware. Counsel for Defendant Palm Inc. Of Counsel: David
L. Alberti, Esquire, Marc C. BelloH, Esquire and Margaret E. Day, Esquire of Feinberg
Day Alberti & Thompson LLP, Palo Alto, California.
Richard K. Herrmann, Esquire of Morris James LLP, Wilmington, Delaware. Counsel
for Defendant Research in Motion Corp.
Adam Wyatt Poff, Esquire and Monte Terrell Squire, Esquire of Young, Conaway,
Stargatt & Taylor, LLP, Wilmington, Delaware. Counsel for Defendant Samsung
Telecommunications America LLC. Of Counsel: Steven S. Cherensky, Esquire, Amber
H. Rovner, Esquire and Aaron Y. Huang, Esquire of WeiI, Gotshal & Manges LLP.
John G. Day, Esquire of Ashby & Geddes, P.A., Wilmington, Delaware. Counsel for
Defendant Simplexity, LLP. d/b/a Wirefly.
Brian Michael Gottesman, Esquire of Berger Harris, LLC, Wilmington, Delaware.
Counsel for Defendant SPB Software Inc. Of Counsel: Catherine I. Rajwani, Esquire
of Harbor Law Group, Northborough, Massachusetts.
Richard L. Horwitz, Esquire, and David Ellis Moore, Esquire of Potter Anderson &
Corroon LLP, Wilmington, Delaware. Counsel for Defendant Qualcomm Inc. Of
Counsel: Harrison J. Frahn, IV, Esquire, Henry B. Gutman, Esquire, Jeffrey E. Ostrow,
Esquire, Victor Cole, Esquire, Natasa Pajic, Esquire, Courtney A. Welshimer, Esquire
and Sara G. Wilcox, Esquire of Simpson Thacher & Bartlett LLP.
Steven J. Fineman, Esquire of Richards, Layton & Finger, PA, Wilmington, Delaware.
Counsel for Defendant U.S. Cellular Corp.

MEMORANDUM OPINION

Dated: July~2011
Wilmington, Delaware

I. INTRODUCTION

Plaintiff Eon Corp. IP Holdings LLC ("plaintiff') filed the present patent litigation
against 17 parties on September 23, 2010. 1 (0.1. 1) Plaintiff filed its first amended
complaint (0.1. 33) on October 28,2010, which defendants moved to dismiss under
Federal Rule of Civil Procedure 12(b){6) for failure to state a claim. (0.1. 50; 0.1. 51 at 11
1) Plaintiff then filed a motion for leave to amend (0.1. 73) and, upon the stipulation of
the parties (0.1. 76), plaintiff filed its second amended complaint (0.1. 81) on January 4,
2011, seeking damages and injunctive relief for defendants' alleged direct, indirect, and
joint infringement of United States Patent No. 5,663,757, entitled "Software Controlled
Multi-Mode Interactive TV Systems" ("the '757 patent"). (0.1. 81 at 111127,45-47) The
court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1338(a).
Presently before the court are motions to dismiss for failure to state a claim filed
by defendants FLO TV Inc. ("FLO TV"), MobiTV, Inc. ("MobiTV"), U.S. Cellular Corp.
("U.S. Cellular"), LG Electronics MobileComm USA, Inc. ("LG") , Motorola, Inc.
("Motorola"),2 Samsung Telecommunications America LLC ("Samsung"), Sprint Nextel
Corp. ("Sprint"), Research in Motion Corp. ("RIM"), HTC America Inc. ("HTC"), Palm,
Inc. ("Palm"), Kyocera Communications Inc. ("Kyocera"), LetsTalk.com, Inc.
("LetsTalk.com"), Qualcomm, Inc. ("Qualcomm"), GoTV Networks, Inc. ("GoTV"), and
Cellco Partnership d/b/a Verizon Wireless ("Verizon"), as well as SPB Software, Inc.

1 The original complaint included Verizon Communications Inc. and Motorola Inc.
as defendants. (0.1. 1) Subsequently, Cellco Partnership d/b/a Verizon Wireless was
added to the suit (0.1. 33). Verizon Communications Inc. was dismissed (0.1. 38), and
Motorola Mobility, Inc. was substituted for Motorola Inc. (0.1. 103)
2 As discussed supra, Motorola Inc. has since been replaced in this suit by
Motorola Mobility, Inc. ("Motorola Mobility"). (0.1. 103)

("SPB") and Simplexity, LLC. d/b/a Wirefly ("Wirefly") (collectively, "defendants").3 (0.1.
84; 0.1. 89; 0.1. 95) For the reasons that follow, the court grants in part and denies in
part defendants' motions to dismiss. Specifically, defendants' motions regarding the
joint infringement and indirect infringement claims are granted, but defendants' motions
regarding the direct infringement claims are denied.

II. BACKGROUND
The '757 patent was issued to plaintiff, as assignee of the inventors, on
September 2, 1997. (0.1. 1 at,-r 27) The '757 patent discloses "a data processing
station subscriber unit that delivers interactive or television-quality entertainment and
informational content to subscribers." (0.1. 90 at 2) Each of the independent claims of
the '757 patent include a limitation requiring "a plurality of sources of video text and
television program channels available from [a wireless television program
communication network]." ('757 patent, col. 6:45)
Defendants argue that plaintiffs second amended complaint fails to satisfy the
pleading requirements for direct infringement, indirect infringement, and joint
infringement. (0.1. 85) Specifically, defendants argue that plaintiffs allegations fail to
allege facts sufficient to establish that: (1) any individual defendant alone directed the
production of all of the components of the purportedly infringing system; (2) defendants
possessed the requisite knowledge and intent to indirectly infringe the '757 patent at the

The motions to dismiss were filed by FLO TV, MobiTV, U.S. Cellular, LG,
Motorola, Samsung, Sprint, RIM, HTC, Palm, Kyocera, LetsTalk.com, Qualcomm,
GoTV and Verizon (collectively "first moving defendants") on January 20,2011 (0.184),
and by SPB on February 7, 2011 (0.1. 89). Wirefly filed a motion for joinder in first
moving defendants' motion to dismiss (0.1. 84) on February 22, 2011. (0.1. 95)
3

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time of the alleged infringement; and (3) any individual defendant directed or controlled
the actions of other infringing parties. (D.1. 85 at 3,9, and 12)

III. STANDARD OF REVIEW
In reviewing a motion filed under Federal Rule of Civil Procedure 12(b)(6), the
court must accept the factual allegations of the non-moving party as true and draw all
reasonable inferences in its favor. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Christopher v. Harbury, 536 U.S. 403, 406 (2002). A complaint must contain "a short

and plain statement of the claim showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the ... claim is and the grounds upon which it
rests." Bell At!. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (interpreting Fed. R. Civ.
P. 8(a» (internal quotations omitted). A complaint does not need detailed factual
allegations; however, "a plaintiffs obligation to provide the 'grounds' of his entitle[ment]
to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do." Id. at 545 (alteration in original) (citation
omitted). The U[f]actual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all of the complaint's allegations are true." Id.
Furthermore, "[w]hen there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to
relief." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Such a determination is a
context-specific task requiring the court "to draw on its judicial experience and common
sense." Id.

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IV. DISCUSSION
A. Direct Infringement
Plaintiff avers that each defendant "has been and is infringing at least one claim
of the '757 patent literally, or under the doctrine of equivalents," by "mak[ing], us[ing],
sell[ing], offer[ing] for sale, or import[ing)" certain products and applications that infringe
the '757 patent. (0.1. at 81

,-r,-r 28-43) Defendants argue that plaintiff's complaint fails to

allege that any defendant individually makes, uses, or sells the entire claimed invention
and, thus, plaintiff's accusations are insufficient to state a claim of direct infringement.

(0.1. 91 at 4)

1. Standard
A cause of action for direct infringement arises under 35 U.S.C. § 271 (a), which
provides that "whoever without authority makes, uses, offers to sell, or sells any
patented invention ... during the term of the patent therefor, infringes the patent." To
state a claim of direct infringement, "a patentee need only plead facts sufficient to place
the alleged in'fringer on notice as to what he must defend." McZeal v. Sprint Nextel
Corp., 501 F.3d 1354, 1357 (Fed. Cir. 2007) (citing Twombly, 550 U.S. at 565 n.10).
The Federal Circuit in McZeal held that, for a direct infringement claim, Federal Rules of
Civil Procedure Form 184 (2009) meets the Twombly pleading standard. See McZeal,
501 F.3d at 1356-57. That is, only the following is required: "(1) an allegation of
jurisdiction; (2) a statement that plaintiff owns the patent; (3) a statement that defendant
has been infringing the patent by 'making, selling, and using [the device] embodying the

4

Formerly, Form 16.

4

patent'; (4) a statement that the plaintiff has given the defendant notice of its
infringement; and (5) a demand for an injunction and damages." McZeal, 501 F.3d at
1357; see also Mallinckrodt Inc. v. E-Z-EM Inc., 670 F. Supp. 2d 349, 353 (D. Del.

2009) (interpreting Form 18 to require the same elements); S.O.I. TEG Silicon on
Insulator Techs., S.A.

v. MEMC Elec. Materials, Inc., Civ. No. 08-292-SLR, 2009 WL

423989, at *2 (D. Del. Feb. 20, 2009).

2. Discussion
Here, plaintiff has made an allegation of jurisdiction (0.1. 81 at ml19-26), stated
that it owns the patent (id. at ~ 27), identified the alleged infringement and provided
identifying information for specific products accused of infringing the '757 patent (id. at
~~

28-43), given defendants notice of their infringement (id. at ~~ 28-47), and made a

demand for injunction and damages (id. at 32-33).
Defendants assert that plaintiff's complaint is insu'fficient because no individual
defendant is alleged to infringe each and every element of a claim in the '757 patent.
As this court has previously held, however, with respect to a motion to dismiss, a
plaintiff is not required to specifically plead "each element of the asserted patent's
claims or even identify which claims it is asserting." Xpoint Techs., Inc. v. Microsoft
Gorp., 730 F. Supp. 2d 349, 353 (D. Del. 2010). Plaintiffs second amended complaint

sufficiently meets the five elements required by Form 18. Indeed, the complaint
exceeds Form 18's example for the third element, which identifies just a general
category of products and provides no further details. Fed. R. Civ. P. Form 18; see
Xpoint Techs., 730 F. Supp. 2d at 353. In so doing, plaintiff has fulfilled its minimal

requirements for pleading direct infringement without the benefits of discovery. See
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McZeal, 501 F.3d at 1357.

B. Indirect Infringement
In the alternative, plaintiff asserts that each defendant "knowingly and specifically
intend[ed] to contribute to or induce infringement." (D.1. 81 at,-r,-r 28-43) Plaintiff
alleges that, among other parties, users of defendants' subscription units commit the
requisite acts of direct infringement required for indirect infringement liability. (D.1. 81 at
,-r 47) Moreover, plaintiff contends that defendants knew or should have known of the
'757 patent before the infringing acts occurred because some defendants entered into
licensing agreements with a third party and obtained rights to two patents that cite the
'757 patent as prior art, U.S. Patent Nos. 5,988,078 ("the '078 patent") and 6,756,997
("the '997 patent").5 (D.1. 81 at,-r,-r 28-29,43) Plaintiff further alleges that each
defendant knew or should have known of the '757 patent as "active and sophisticated
participants in the interactive television market." (D.1. 81 at,-r,-r 28-43) Defendants
argue that plaintiffs claims as to knowledge of the '757 patent are too speculative and
attenuated to establish that defendants possessed the knowledge required for a claim
of indirect infringement. (D.1. 85 at 13-15; D.1. 91 at 8-10)

5 Specifically, the second amended complaint pleads that FLO TV, MobiTV, and
Verizon each entered into licensing agreements with Gemstar-TV Guide International,
Inc., later acquired by Rovi Corporation ("Rovi"). (D.1. 81 at,-r 28-29,43) Subsequent to
filing the second amended complaint, plaintiff discovered that Samsung had entered
into an identical license agreement with Rovi. (D.1. 90 at 16) The Rovi license
agreements included granting FLO TV, MobiTV, Verizon and Samsung rights to the
'078 and '997 patents. Plaintiff alleges that all other defendants knew or should have
known of the '757 patent through agreements with FLO TV and MobiTV, whose
accused products, according to plaintiff, likely would have required licenses to the '078
patent.

6

1. Standard
Under 35 U.S.C. § 271(b), "whoever actively induces infringement of a patent
shall be liable as an infringer." "To demonstrate inducement of infringement, the
patentee must establish 'first that there has been direct infringement, and second that
the alleged infringer knowingly induced infringement and possessed specific intent to
encourage another's infringement.'" SRllnt'l, Inc. v. Internet Sec. Sys., Inc., 647 F.
Supp. 2d 323,335 (D. Del. Aug. 20, 2009) (citing Broadcom Corp. v. Qualcomm Inc.,
543 F.3d 683, 697-98 (Fed. Cir. 2008)); see also Global- Tech Appliances, Inc. v. SEB
S.A., 131 S.Ct. 2060, 2068 (2011) (holding that induced infringement requires

knowledge that the inducing actions constitute patent infringement); Vita-Mix Corp. v.
Basic Holding, Inc., 581 F.3d 1317, 1328 (Fed. Cir. 2009). As such, a complaint stating

a claim for inducement must allege the requisite knowledge and intent. Mallinckrodt,
670 F. Supp. 2d at 354.
In order to be liable for contributory infringement, an infringer must sell, offer to
sell or import into the United States a component of an infringing product "knowing [the
component] to be especially made or especially adapted for use in an infringement of
such patent, and not a staple article or commodity of commerce suitable for substantial
non-infringing use." 37 U.S.C. § 271(c); see Lucent Techs. v. Gateway, Inc., 580 F.3d
1301, 1320 (Fed. Cir. 2009). Therefore, an allegation of contributory infringement must
also plead requisite knowledge of the patent-in-suit at the time of infringement.
Mallinckrodt, 670 F. Supp. 2d at 355.

2. Discussion
Plaintiff fails to allege sufficient facts that would allow the court to infer that
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defendants had any knowledge of the '757 patent at the time they were committing the
allegedly infringing activities. Although the court in Xpoint Techs. held that a licensing
agreement between a plaintiff and a defendant regarding the patent-in-suit was a
sufficient basis for an allegation that defendant possessed knowledge of the patent-in­
suit to withstand a motion to dismiss, the circumstances here are distinguishable.
Xpoint Techs., 730 F. Supp. 2d at 357. In this case, the '757 patent is a step further
removed from the subjects of the licensing agreements between certain defendants and
a third party. It is just one of fourteen patents cited by the '078 patent and one of
ninety-eight cited by the '997 patent. (D.1. 91 at 9) Thus, the link between the '757
patent and defendants involved in the licensing agreements with a third party is too
tenuous to sustain an allegation of knowledge. Even more attenuated, plaintiff asserts
that defendants knew or should have known of the '757 patent by virtue of their
participation in the interactive television market. (D.1. 81 at 1111 28-43) The court
declines to embrace this reasoning, particularly given the rapidly changing nature of
technologically-based markets such as interactive television. 6 Consequently, plaintiff
has failed to assert that defendants had sufficient knowledge of the '757 patent at the
time of the alleged infringing actions. Without the requisite knowledge element, plaintiff
fails to adequately state a claim of indirect infringement.

6 Plaintiff contends that requisite knowledge standard for contributory
infringement is constructive knowledge, and that plaintiff need merely plead that
defendants should have known of the '757 patent, not that defendants had actual
knowledge. (D.I. 90 at 18-19) Even under a constructive knowledge standard,
however, plaintiff's allegations that defendants should have known of the '757 patent
lack sufficient factual support to assert such a claim.

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c.

Joint Infringement

Plaintiff also asserts that it is plausible to infer from various activities of
defendants that some defendant exerts control or direction over other parties' allegedly
infringing activities and, thus, incurs joint infringement liability. (0.1. 90 at 6,12-13)

1. Standard
In circumstances where one party performs some of the steps of a patent claim,
and another entity performs other of the claimed steps, a theory of joint infringement
may establish liability. Muniaction, Inc. v. Thomson Corp., 532 F.3d 1318, 1329 (Fed.
Cir. 2008); Leader Techs., Inc.

V.

Facebook, Inc., Civ. No. 08-862, 2011 WL 881862, at

*3 (D. Del. Mar. 14,2011). Joint infringement will only lie, however, "if one party
exercises 'control or direction' over the entire process such that every step is
attributable to the controlling party, i.e., the 'mastermind.'" Muniaction, 532 F.3d at
1329 (citing BMC Res. Inc. V. Paymentech, L.P., 498 F.3d 1373, 1380-81 (Fed. Circ.
2007». This "control or direction" standard is "satisfied in situations where the law
would traditionally hold the accused direct infringer vicariously liable for the acts
committed by another party that are required to complete performance of a claimed
method." Id. at 1330 (citation omitted). If such evidence is lacking, the court will not
"unilaterally restructure the claim or the standards for joint infringement to remedy [ ] ill­
conceived claims" requiring multiple parties to perform different acts within one claim.

BMC Res., 498 F.3d at 1381 (citation omitted).

2. Discussion
Plaintiff argues that, to satisfy the elements of joint infringement for a motion to
dismiss, parties are not required to plead anything more than the standard for direct
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infringement. (D.1. 90 at 12-13) The court disagrees. For direct infringement liability,
plaintiff must prove that defendant "perform[ed] or use[d] each and every step or
element or a claimed method or product." BMC Res., 498 F.3d at 1378. In contrast, as
discussed supra, joint infringement liability not only requires proof that various parties
perform all of the claimed steps, but also that one party exercise "control or direction"
over the infringing activities of all other parties. In accordance with this distinction, the
court finds it appropriate to differentiate the elements required to properly allege joint
infringement and direct infringement at the pleading stage as well.
The Federal Circuit has held that, in granting Rule 12(b)(6) motions, district
courts may take into consideration the failure of plaintiff's complaint to properly allege
that defendant exercised the "control or direction" necessary to satisfy the joint
infringement standard. Desenberg v. Google, Inc., 392 F. App'x 868,871 (Fed. Cir.
2010) (affirming the district court's decision to grant a motion to dismiss because
plaintiff failed to allege that defendant acted as a "mastermind" controlling or directing
the actions of third party users); Global Patent Holdings, LLC v. Panthers BRHC LLC.,
586 F. StiPp. 2d 1331, 1335 (S. D. Fla. 2008) (affirming the district court's granting of a
motion to dismiss because plaintiff failed to allege that defendant exerted sufficient
"control or direction" over third party users).7

7 Plaintiff argues that Desenberg and Global Patent Holdings are distinguishable
because in both Desenberg and Global Patent Holdings, the patent-in-suit involved a
claim that indisputably required the involvement of third parties that plaintiff failed to
allege were under the "control or direction" of defendant. (D.1. 90 at 11-12) In contrast,
here, the parties disagree as to whether the '757 patent's claims require multiple actors,
with plaintiff arguing that multiple actors are not required. (Jd. at 10, 13) This
disagreement, according to plaintiff, precludes the court from dismisSing the case
before discovery because to do so would require that the court construe the asserted
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The court notes that, as discussed supra, it is this court's practice to require
plaintiff's complaint to plead knowledge and intent for indirect infringement claims on
motions to dismiss. E.g., Xpoint Techs., 730 F. Supp. 2d at 356 (holding that
complaints claiming inducement of infringement must allege "the requisite knowledge
and intent" on a motion to dismiss). Cf. Charles E. Hill & Assocs., Inc. v. ABT Elecs.,
Inc., Civ. No. 2:09-CV-313, 2010 WL 3749514, at *2 (ED. Tex. 2010) (denying motion
to dismiss because plaintiff is not required to plead "each individual element" of an
indirect infringement claim). Consistent with this court's heightened pleading
requirement for indirect infringement claims, the court will similarly require plaintiffs
complaint to satisfy the Federal Circuit's "control or direction" standard for joint
infringement claims on motions to dismiss.
In the case at bar, even though plaintiff satisfied the pleading requirements for
direct infringement, plaintiff's complaint does not provide specific facts explaining any

claims. (Id. at 13) While the court agrees that it is not appropriate to resolve questions
of claim construction on a motion to dismiss, Deston Therapeutics LLC v. Trigen Labs.
Inc., 723 F. Supp. 3d 665, 670-71 (D. Del. 2010), the court disagrees that claim
construction is relevant here. As discussed supra, joint infringement liability, by its
nature, requires multiple actors - at least one party that performs some of the claimed
steps and one party that exercises "control or direction" - regardless of whether or not
the patent claim specifically requires multiple actors. Even if the claims at issue are
read in the light most favorable to plaintiff and are construed to not require multiple
actors, plaintiffs complaint is still insufficient to meet the joint infringement pleading
requirement, as discussed infra, because plaintiff fails to allege that anyone defendant
sufficiently controls or directs other parties in performing the infringing acts. In re Bill of
Lading Transmission & Processing Sys. Patent Litig., 695 F. Supp. 2d 680, 688-89
(S.D. Ohio 2010) (granting motion to dismiss because plaintiffs complaint insufficiently
alleged indirect infringement, and holding that even though the court agreed that it
would be inappropriate to address whether a patent requires multiple users on a motion
to dismiss, such claim construction was irrelevant for considering plaintiffs allegations).
The differences between Desenberg and Global Patent Holdings and this case are,
therefore, not relevant.
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alleged relationships among defendants. Plaintiff fails to identify any defendant as
exercising "control or direction" over the allegedly infringing acts of other parties.
Consequently, plaintiffs complaint does not sufficiently state a claim of joint
infringement. See Friday Group v. Ticketmaster, Civ. No. 08-1203,2008 WL 5233078,
at *3 (E.D. Mo. Dec. 12,2008) (granting motion to dismiss regarding a method claim
because plaintiff failed to identify any single defendant as the "mastermind" or at least
vicariously liable for the actions of other defendants). 8

V. CONCLUSION
For the foregoing reasons, the court grants in part and denies in part defendants'
motions to dismiss for failure to state a claim. An appropriate order shall issue.

8 The court notes that it is questionable whether a theory of joint infringement is
even applicable to this case. The '757 patent describes components for a "data
processing station subscriber unit" (0.1. 90 at 2) with interactive television capabilities,
rather than describing steps, suggesting that the claims at issue are system claims, not
method claims. ('757 patent, col. 6:35) This court, however, has previously held that
joint infringement liability only applies to method claims, and not to system claims.
Leader Techs, Inc., 2011 WL 881862, at *4 (denying in part judgment as matter of law
where the jury was instructed to consider joint infringement liability with respect to
plaintiff's method claims, but not plaintiffs system claims). Accordingly, it is likely that
plaintiffs patent claims here are not eligible for a theory of joint infringement.

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