Network Managing Solutions, LLC v. AT&T, Inc. et al.

Filing 16

MEMORANDUM ORDER Granting MOTIONS to Dismiss (see D.I. 7 in 16-cv-295-RGA, D.I. 7 in 16-cv-298-RGA, D.I. 7 in 16-cv-297-RGA, D.I. 7 in 16-cv-296-RGA, D.I. 9 in 16-cv-299-RGA). Plaintiff is granted three weeks to file an amended complaint. Signed by Judge Richard G. Andrews on 2/3/2017. Associated Cases: 1:16-cv-00295-RGA, 1:16-cv-00296-RGA, 1:16-cv-00297-RGA, 1:16-cv-00298-RGA, 1:16-cv-00299-RGA(nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

NETWORK MANAGING SOLUTIONS, LLC,
Plaintiff,

No. 16-cv-295 (RGA)

v.
AT&T INC. and AT&T MOBILITY, LLC,
Defendant.
NETWORK MANAGING SOLUTIONS, LLC,
Plaintiff,

v.

No. 16-cv-296 (RGA)

SPRINT CORPORATION and SPRINT
SPECTRUM L.P .,
Defendant.
NETWORK MANAGING SOLUTIONS, LLC,
Plaintiff,

No. 16-cv-297 (RGA)

v.
T-MOBILE USA, INC.,
Defendant.
NETWORK MANAGING SOLUTIONS, LLC,
Plaintiff,
V.

No. 16-cv-298 (RGA)
UNITED STATES CELLULAR CORPORATION
d/b/a/ U.S. CELLULAR
Defendant.

NETWORK MANAGING SOLUTIONS, LLC,
Plaintiff,
V.

No. 16-cv-299 (RGA)
VERIZON COMMUNICATIONS INC. and
CELLCO PARTNERSHIP d/b/a VERIZON
WIRELESS,
Defendant.

MEMORANDUM ORDER

Defendants have moved under Federal Rule of Civil Procedure 12(b)(6) for
dismissal of all the claims in suit. There are five separate complaints but the
complaints are, in relevant parts, the same. Defendants' motions (No. 16cv295 D.I.
7; No. 16cv296 D.I. 7; No. 16cv297 D.I. 7; No. 16cv298 D.I. 7; No. 16cv299 D.I. 9) are

GRANTED.
Defendants' motion to dismiss Plaintiffs direct infringement claim is

GRANTED. Plaintiff makes three primary allegations related to infringement.
First, Plaintiff identifies at least one claim from each asserted patent that it alleges
Defendants infringed. Second, Plaintiff alleges that the 3rd Generation Partnership
Project Standards incorporate the technologies covered by the patents. Third,
Plaintiff also alleges on information and belief that Defendants adopted the 3GPP
standards.
The first and third allegations are sufficient. In particular, Plaintiff cannot be
expected to allege more about Defendants' use of the patented technology as
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Defendants keep information about their own technology secret and Defendants do
not offer some public product that can be reverse engineered.
The second allegation, however, is incomplete. Plaintiff knows its own
patents. The standards are public. Saying on "information and belief' that the
standards "incorporate the fundamental technologies" covered by the patents,
without more, is insufficient to plausibly allege that to practice the standard
necessarily means that a defendant also practices the patent.
Defendants' motion to dismiss Plaintiffs indirect infringement claims is
GRANTED. There are additional reasons to grant dismissal of the allegations of
indirect infringement. First, Plaintiff has failed to identify in any manner, directly
or by implication, some third party that actually infringes. Second, Defendants'
participation in standard setting does not create a plausible claim Defendants
possessed specific intent to induce another's infringement.
Defendants' motion to dismiss Plaintiffs willful infringement claims is
GRANTED. As explained, Plaintiff has not adequately pled direct infringement.
Otherwise, Plaintiffs allegations about Defendants' knowledge of the patent
through its licensing attempts would adequately allege a claim of willful
infringement.
Defendant Verizon Communications Inc. (VCI) has moved for dismissal of all
claims against it because it is a holding company that does not make or sell any
products or services in Delaware. While ultimately this may be grounds for
judgment against Plaintiff and grounds for a§ 285 motion, Rule 12(b)(6) requires
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me to consider only the pleadings. Because I have granted the motion on other
grounds, however, I do not need to reach this issue.
The dismissal is without prejudice. Plaintiff is granted three weeks to file an
amended complaint.
IT IS SO ORDERED this

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day of February 2017.

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