Agarwal v. Topgolf International, Inc.

Filing 29

ORDER: Defendant Topgolf International, Inc.'s Motion to Dismiss (Doc. # 27 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 1/4/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMIT AGARWAL,
Plaintiff,
v.

Case No. 8:16-cv-2641-T-33JSS

TOPGOLF INTERNATIONAL, INC.,
Defendant.
________________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Topgolf International, Inc.’s Motion to Dismiss, filed on
November 7, 2016. (Doc. # 27). Plaintiff Amit Agarwal filed
a response in opposition on November 11, 2016. (Doc. # 28).
For the reasons that follow, the Motion is denied.
I.

Background
Agarwal is an investor located in Wimauma, Florida, and

the current owner of U.S. Patent 5,370,389 (the ‘389 patent),
for a “Golf Range Method and Apparatus,” which infuses golf
ranges with technology. (Doc. # 1 at ¶¶ 2, 5; Doc. # 1-1 at
1). Specifically, golf balls are marked with identifying
features that indicate from which of a plurality of golfing
tees they are hit. (Doc. # 1 at ¶ 2). There are a plurality

1

of target greens located on each fairway toward which players
aim. (Id.). When the player strikes a golf ball at the target
greens on the fairway, the golf ball hits the sloped rear
portion of the target green and slides down into a receptacle
hole. (Id.). A sensor in each receptacle hole identifies the
player who hit the golf ball and assigns him points. (Id.).
The sensors provide a different score value for different
target greens. (Id.; Doc. # 1-1 at 1). In short, “[t]he ‘389
patent covers the end-to-end process relating to playing
point-scoring games at high-tech golf courses.” (Doc. # 1 at
¶ 2).
Topgolf “operates several high-tech golf driving ranges
throughout the country.”(Id. at ¶ 6). Agarwal alleges that
Topgolf’s driving ranges in Dallas, Texas, Allen, Texas, and
Alexandria, Virginia infringed on his patent from September
14, 2010, until September 25, 2012, when the patent expired.
(Id.

at

1).

According

to

Agarwal,

Topgolf

infringed

by

providing point-scoring games using golf balls with radiofrequency identification (RFID) chips. (Id. at ¶ 3). Players
hit these golf balls toward a plurality of target greens,
where the golf balls slide down a sloped surface to be
captured in receptacle holes with RFID sensors, which track
the

players’

scores.

(Id.

at
2

¶¶

24-32,

60-62).

Agarwal

identifies the target trench at each of the three driving
ranges as the “plurality of target greens,” that allegedly
infringes the ‘389 patent. (Id. at ¶¶ 24-26). The single
target trench at each driving range is comprised of separate
compartments, with each compartment having its own receptacle
hole. (Id. at ¶¶ 24-26, 30-32). Agarwal claims that Topgolf
knowingly infringed his ‘389 patent and that approximately
half of Topgolf’s own patents for high-tech golf games cite
the ‘389 patent. (Id. at ¶ 10).
Agarwal

filed

the

present

action

in

this

Court

on

September 14, 2016, alleging willful and direct infringement
of claims 1 and 6 of the ‘389 patent in violation of 35 U.S.C.
§ 271(a). (Doc. # 1). On November 7, 2016, before any claim
construction

proceedings,

Topgolf

filed

its

Motion

to

Dismiss. (Doc. # 27). Agarwal responded on November 11, 2016.
(Doc. # 28). The Motion is ripe for review.
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this

Court

favors

the

plaintiff

with

all

reasonable

inferences from the allegations in the complaint. Stephens v.
3

Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986).
Furthermore, “[t]he scope of review must be limited to
the four corners of the complaint.” St. George v. Pinellas
Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). But a “court may
consider a document attached to a motion to dismiss without
converting the motion into one for summary judgment if the
attached document is (1) central to the plaintiff’s claim and
(2) undisputed.” Day v. Taylor, 400 F.3d 1272, 1276 (11th
Cir. 2005)(internal citation omitted).
III. Analysis
In patent infringement cases,
4

the Federal Circuit has held that a party claiming
patent infringement only needs to: (1) allege
ownership of the asserted patent; (2) name each
individual defendant; (3) cite the patent that is
allegedly infringed; (4) describe the means by
which the defendants allegedly infringe; and (5)
point to the specific sections of the patent law
invoked.
Mesh Comm, LLC v. EKA Sys., Inc., No. 8:09-cv-1064-T-33TGW,
2010

WL

750337,

at

*2

(M.D.

Fla.

Mar.

4,

2010)(citing

Phonometrics, Inc. v. Hosp. Franchise Sys., 203 F.3d 790, 794
(Fed. Cir. 2000)). In pleading these elements, a plaintiff
must demonstrate a plausible claim for relief as required by
Federal

Rule

Eaglepicher

of

Civil

Techs.,

Procedure

LLC,

No.

8.

See

Nexeon

1:15-CV-955-RGA,

Ltd.

v.

2016

WL

6093471, at *1 (D. Del. Oct. 18, 2016)(noting that “patent
infringement allegations are evaluated under the plausibility
standard of [Twombly]”).
The parties do not dispute that Agarwal has alleged
ownership of and cited the ‘389 patent, named Topgolf as the
sole defendant, and pointed to the section of the patent law
that was allegedly violated. Nevertheless, Topgolf argues
that Agarwal’s claim for patent infringement is implausible
on its face and should be dismissed without proceeding to
claim construction. (Doc. # 27 at 1). According to Topgolf,
Agarwal has not plausibly alleged that Topgolf maintained any

5

facilities or engaged in any conduct that could plausibly
infringe the ‘389 patent.
The

parties’

disagreement

concerns

the

proper

interpretation of the phrase “plurality of target greens”
within the patent. Topgolf asserts that Agarwal has not
plausibly

alleged,

and

cannot

allege,

that

Topgolf’s

facilities maintained a “plurality of target greens.” (Id. at
2, 15). Rather, according to Topgolf, the Complaint only
specifies the existence of a single target trench into which
golf balls are hit, which does not qualify as a “plurality of
target greens” as the term is typically understood. (Id. at
2, 16).
“[T]he

words

of

a

claim

are

generally

given

their

ordinary and customary meaning.” Phillips v. AWH Corp., 415
F.3d 1303, 1312 (Fed. Cir. 2005). Topgolf argues that the
term “green” within the ‘389 patent refers to a circular or
elliptical hole marked by a flag, which it asserts is how the
term is generally understood in golf. (Doc. # 27 at 7). In
support, Topgolf cites to sections of its own website that
describe the layout of its driving ranges and other target
types,

including

circular

targets

marked

by

flags

that

Agarwal does not identify as infringing the ‘389 patent. (Doc.
## 27 at 2, 4). Topgolf also cites to a Washington Post
6

article

to

establish

that

“[n]eutral

third

parties

have

recognized the difference between the circular targets [at
Topgolf’s

driving

ranges

that

Agarwal

does

not

allege

infringe his patent] that may look like ‘greens’ and the
‘trench target,’ which is unique and not like a ‘green.’”
(Id. at 18). However, the Court will not consider Topgolf’s
website and the news articles attached to the Motion because
they are outside the four corners of the Complaint and are
not central to Agarwal’s claim.
Additionally,

while

“green”

may

typically

have

one

meaning in traditional golf, it is not clear on the record
before the Court whether “green” may have carried a different
meaning for the patentee. Cf. Phillips, 415 F.3d at 1314,
1316

(noting

that

“patentees

frequently

use

terms

idiosyncratically” and that “our cases recognize that the
specification may reveal a special definition given to a claim
term by the patentee that differs from the meaning it would
otherwise

possess,”

lexicography

in

governs”).

The

which
‘389

case

“the

inventor’s

patent

attached

to

the

Complaint states that “[e]xisting driving ranges often have
small greens that include target flags at which to aim.” (Doc.
# 1-1 at 1:48-49). This description of a “green” sounds like
the construction of the term urged by Topgolf; however, the
7

patent merely acknowledges that the “greens” at many driving
ranges

fit

patents

that

cited

in

description.
the

‘389

Similarly,
patent

while

identify

the

other

“greens”

as

“generally circular or oval in shape” and marked by a flag,
the ‘389 patent does not state that the term “green” is
limited to include only circular greens with target flags,
and Topgolf has not cited any case law construing the term
“green” in that narrow way. (Doc. # 27-4 at 2:41-42, 64).
While the drawings within the patent display circular
holes

marked

by

flags,

the

patent

specifies

that

these

drawings should “be regarded as illustrative in nature and
not as restrictive.” (Doc. # 1-1 at 3:2-9). The drawings show
“a preferred embodiment” of the invention but the invention
is “capable of other different embodiments.” (Id.); see also
Phillips, 415 F.3d at 1323 (“[W]e have expressly rejected the
contention

that

if

a

patent

describes

only

a

single

embodiment, the claims of the patent must be construed as
being limited to that embodiment.” (citing Gemstar-TV Guide
Int’l, Inc. v. Int’l Trade Comm’n, 383 F.3d 1352, 1366 (Fed.
Cir. 2004))). Thus, at the motion to dismiss stage, the
drawings and citations to previous patents within the ‘389
patent do not render Agarwal’s interpretation of the term
“plurality of target greens” implausible.
8

Next,

Topgolf

notes

that

each

of

the

purportedly

infringing driving ranges had only one target trench. Because
there is only one target trench, Topgolf contends that the
trench cannot qualify as a “plurality of target greens.” (Doc.
# 27 at 20); see also Cheese Sys., Inc. v. Tetra Pak Cheese
and

Powder

Sys.,

Inc.,

725

F.3d

1341,

1348

(Fed.

Cir.

2013)(“The district court correctly assessed that a plurality
simply

means

two

or

more.”).

However,

the

Complaint

identifies — and Topgolf concedes — that each target trench
is

divided

into

separate

compartments

with

separate

receptacle holes and different point values. (Doc. # 1 at 2426, 30-32; Doc. # 27 at 4, 21). Thus, Agarwal’s interpretation
of

the

individual

compartments

of

the

target

trench

as

constituting a “plurality of target greens” is plausible. See
Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., No. 2:15CV-1202-WCB, 2016 WL 1643315, at *3 (E.D. Tex. Apr. 26,
2016)(denying motion to dismiss direct infringement claim
before claim construction because “[g]iven the inferences
that must be credited at this stage in the case, [Plaintiff’s
interpretation of the term ‘administer’ as used in the claims
is] not a wholly implausible characterization”).
Furthermore, a determination that Agarwal has not stated
a plausible claim of infringement against Topgolf because
9

Topgolf’s facilities did not contain a “plurality of target
greens”
Agarwal’s

would

be

patent

premature.
by

Whether

maintaining

a

Topgolf

“plurality

infringed
of

target

greens” is a disputed fact that should not be resolved on a
Rule

12(b)(6)

motion.

Cf.

Hand

Held

Prods.,

Inc.

v.

Amazon.com, Inc., No. 12-CV-768-RGA-MPT, 2013 WL 507149, at
*7

(D.

Del.

Feb.

6,

2013)(“Defendants

attempt

to

surreptitiously have the court conduct claim construction as
part of its analysis under Rule 12(b)(6), contrary to the
purpose of the rule. The analysis required is not to resolve
disputed

facts,

nor

decide

the

merits;

rather,

the

examination is limited to testing the sufficiency of the
complaint.”).
Such a determination would require the Court to rule on
claim construction issues before any claim construction has
occurred. As the Federal Circuit wrote,
We agree with R+L that, to the extent the district
court based its assessment of the “reasonableness”
of a given inference of infringement on a narrow
construction
of
the
patent’s
claims,
claim
construction at the pleading stage — with no claim
construction
processes
undertaken
—
was
inappropriate. We afford the claims their broadest
possible construction at this stage of the
proceedings.
In re Bill of Lading Transmission and Processing Sys. Patent
Litigation,

681

F.3d

1323,

10

1343

n.13

(Fed.

Cir.

2012)(vacating in part Rule 12(b)(6) dismissal of inducing
infringement claims).
Therefore, the Court will not engage in impromptu claim
construction of the term “plurality of target greens” without
the benefit of claim construction briefing and a hearing. See
Walker Digital, LLC v. Facebook, Inc., 852 F. Supp. 2d 559,
563 (D. Del. 2012)(“The court is not prepared to engage in a
claim construction exercise at this stage of the proceedings,
with no context whatsoever provided by discovery or a motion
practice.”); see also Tech. Innovations, LLC v. Amazon.com,
No. 11-690-SLR, 2012 WL 1441300, at *2 (D. Del. Apr. 25,
2012)(denying motion to dismiss and refusing to construe “the
claim terms ‘book’ and ‘printed information,’ at this stage
of the proceedings, with no context provided by discovery or
a motion practice”).
Topgolf highlights two cases in which the district court
dismissed patent infringement claims with prejudice before
claim

construction.

But

the

Court

finds

those

cases

distinguishable. In Anchor Sales v. Richloom Fabrics, No. 15CV-4442(RA), 2016 WL 4224069 (S.D.N.Y. Aug. 9, 2016), the
court

dismissed

the

patentee’s

claim

because

the

patent

specified that a type of sliding bead was “the essence of
[the] invention,” but the allegedly infringing products did
11

not include such a sliding bead. Id. at *6. In contrast, the
‘389 patent does not specify a required shape for a “green”
or whether it must be marked by a flag. Furthermore, the
patent stipulates that its drawings, which depict circular
greens with flags, illustrate merely one embodiment of the
invention. (Doc. # 1-1 at 3:2-9).
Additionally, in Atlas IP, LLC v. Exelon Corp., No. 15C-10746, 2016 WL 2866134 (N.D. Il. May 17, 2016), the court
stated that claim construction can be engaged in at the motion
to dismiss stage “at least when it is based on facts alleged
in

or

reasonably

inferable

from

the

complaint”

because

“determinations grounded solely on the claim language, the
specification and the prosecution history (as opposed to the
extrinsic record) are purely legal in nature.” Id. at *4.
But, here, Topgolf includes references to external sources,
including Topgolf’s website and a news article, in support of
its argument that the term “green” should be interpreted to
exclude Topgolf’s target trench. (Doc. # 27 at 2-4). Also,
Topgolf has cited no case law construing the term “green” or
supporting

its

argument

that

the

single

target

trench,

constituted by numerous separate compartments, could not
plausibly qualify as a “plurality” of different targets.

12

Thus, Topgolf’s contention that its target trench does
not qualify as a “plurality of target greens” is an argument
more appropriate for claim construction. Erfindergemeinschaft
Uropep GbR, 2016 WL 1643315, at *4 (“It may be that the
proceedings

will

ultimately

determine

that

the

term

‘administering’ does not reach conduct such as the conduct
alleged in the complaint . . . . Those questions, however,
are properly left for claim construction, summary judgment,
or trial.”).
At this stage, when Agarwal’s claims are given their
broadest construction, the Complaint states a plausible claim
for infringement and sufficiently puts Topgolf on notice of
the alleged infringing conduct. See Bel Fuse Inc. v. Molex
Inc., 27 F. Supp. 3d 557, 563 (D.N.J. 2014)(“Here, there has
been no claim construction and Plaintiff’s allegations are
sufficient to put the sole Defendant on notice as to the
allegedly infringing conduct.”). Therefore, Topgolf’s Motion
is denied.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendant

Topgolf

International,

Dismiss (Doc. # 27) is DENIED.

13

Inc.’s

Motion

to

DONE and ORDERED in Chambers in Tampa, Florida, this 4th
day of January, 2017.

14