July 3, 2013

Judge Robinson rules on summary judgment motions

In a recent memorandum opinion, Judge Sue L. Robinson considered plaintiffs’ motion for partial summary judgment on infringement and defendants’ cross-motion for non-infringement, in addition to defendants’ motion for summary judgment of invaldity and plaintiffs’ cross-motion for partial summary judgment of validity. INVISTA North America S.a.r.l. et al. v. M&G USA Corporation, et al., C.A. No. 11-1007-SLR-CJB (D. Del. June 25, 2013). Plaintiffs are asserting three patents—U.S. Patent Nos. 7,919,159 (“the ’159 patent”); 7,943,216 (“the ’216 patent”); and 7,879,930 (“the ’930 patent”)—each related to “plastic materials with applications in packaging for oxygen-sensitive foods.” Id. at 1. The ’216 and ’159 patents share a common specification and relate specifically to compositions (and containers and articles derived therefrom), which are alleged to possess strong gas barrier properties while yielding comparatively small amounts of yellowness and haze that traditionally accompanied compositions with similar properties. See id. at 2-4. The ’930 patent relates to “the use of certain colorants that do not completely deactivate” the transition metal catalyst in compositions such as those claimed in the ’216 and ’159 patents. See id. at 5.

With respect to the ’216 and ’159 patents, Judge Robinson granted summary judgment of no direct infringement. Id. at 19. The Court had construed the term “composition” as used in those patents to mean “a blend that contains the specified ingredients at any time from the moment the ingredients are mixed together.” Id. at 17. It was undisputed that defendants’ accused products—the PoliProtect products (“PoliProtect”)—are “manufactured as pellets” and have components that are separated into different layers. Id. at 17. Because the components were not “mixed together in a blend,” Judge Robinson found that PoliProtect did not practice the “composition” limitation. Id. at 18-19.

However, turning to indirect infringement of the ’216 patent, Judge Robinson found that the “only reasonable inference from the evidence of record is that [defendants’] customers mix the components of the pellets into blends to make their desired articles,” and “thereby necessarily practice the ‘composition’ limitation.” Id. at 20-21. Judge Robinson also found that, with the exception of one claim, PoliProtect practiced the remaining limitations of the seven asserted claims from the ’216 patent. See id. at 21-26. Further, as Judge Robinson noted, defendants “had knowledge of the ’216 patent at least from the filing of [the] lawsuit.” Id. at 26. Addressing contributory infringement, Judge Robinson found that defendants offered “no evidence to rebut [plaintiffs’] arguments that the PoliProtect products are not a staple of commerce that are suitable for noninfringing uses.” Id. at 27. With respect to induced infringement, Judge Robinson first noted that plaintiffs “established on the summary judgment record that the PoliProtect products have no substantial noninfringing uses.” Id. at 28. Moreover, Judge Robinson explained that “it is entirely appropriate to presume that one who sells a product containing a component that has no substantial noninfringing use in that product does so with intent that the component will be used to infringe.” Id. at 29 (quoting Ricoh Co. v. Quanta Computer Inc., 550 F.3d 1325, 1340, 1338 (Fed. Cir. 2008)). Judge Robinson therefore granted summary judgment of contributory and induced infringement for six of the seven asserted claims of the ’216 patent.

Judge Robinson, however, denied plaintiffs’ motion for summary judgment with respect to indirect infringement of the ’159 patent. Id. at 31. Plaintiffs argued PoliProtect literally infringed the ’159 patent because PoliProtect’s LiSIPA-containing copolyester meets both the “polyester” and “ionic compatibilizer” limitations. Id. at 29. Judge Robinson did note that “the doctrine of equivalents may be applicable even when its application would vitiate the requirement that two components be separate elements.” Id. at 30. Judge Robinson concluded, however, that defendants raised genuine issues of material fact regarding the “polyester” limitation under the doctrine of equivalents, precluding the entry of summary judgment. Id. at 30-31.

With respect to the ’930 patent, the parties summary judgment motions addressed only indirect infringement. See id. at 31. Judge Robinson found that plaintiffs offered evidence of infringement of the limitations at issue and thus created genuine issues of material fact, precluding the entry of summary judgment of no indirect infringement. See id. at 31-35.

Turning to the validity motions, Judge Robinson noted that defendants argued that the asserted claims of the ’159 and ’216 patents are invalid as obvious and for failure to comply with 35 U.S.C. § 112’s written description and enablement requirements. Id. at 34. With respect to obviousness, defendants asserted that the ’159 and ’216 patents are obvious in light of two prior art references. Id. at 35. As Judge Robinson explained, however, defendants’ expert “never addressed the combination of the . . . references in his expert reports,” and the argument was made for the first time in defendants’ reply summary judgment brief for invalidity. Id. at 35-36. Although defendants attempted to support the new theory with an expert declaration attached to the reply brief, the new opinions in the declaration were struck in a separate order as untimely and prejudicial. Id. at 36. Without expert testimony addressing the combination of the two references, Judge Robinson granted plaintiffs’ motion for partial summary judgment of validity on this ground. Id. at 36.

With respect to a lack of enablement, defendants first argued that the ’159 and ’216 patents recite a “metal sulfonate salt,” but did not provide any “meaningful disclosures, teachings, or supportive data” related to those salts, with the exceptions of sodium and zinc. Id. at 37. Judge Robinson found, however, that plaintiffs’ expert presented evidence that the patent specification “enables one of ordinary skill in the art to make and use the claimed invention.” Id. at 39. Thus, there remained an issue of material fact, and Judge Robinson denied entering summary judgment of lack of enablement on this ground. Id. at 39. Defendants had also set forth several other similar invalidity arguments under § 112 related to the ’159 and ’216 patents, which were all premised on a similar theory that the scope of the asserted claims were “substantially broader than the small number of examples provided.” Id. at 42-43. Once again, Judge Robinson found that entry of summary judgment for invaldity on these grounds was precluded “[i]n light of the conflicting expert testimony” regarding whether the examples provided in the specification enable a person of ordinary skill in the art to make the claimed invention. Id. at 43.

Defendant also argued that plaintiffs’ specification failed to disclose the “importance of sodium acetate . . . in controlling yellowness in the compositions of the ’159 and ’216 patents,” and that the patents were therefore nonenabling and lacked a sufficient written description. Id. at 39. Judge Robinson explained, however, that “[t]he enablement and written description requirements are both based on the invention as claimed,” and “sodium acetate is not a limitation in any of the asserted claims and is not mentioned in the specification.” Id. at 40-41. Judge Robinson therefore granted plaintiffs’ partial motion for summary judgment of validity on this ground. Id. at 42.

With respect to the ’930 patent, defendants moved for summary judgment of invalidity based on an insufficient written description, non-enablement, and indefiniteness. Id. at 43. Judge Robinson denied the parties’ motions for summary judgment on these issues in light of conflicting expert testimony. See id. at 43-45.

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July 1, 2013

Judge Robinson denies motion to dismiss for lack of personal jurisidiction, without prejudice to renew following jurisdictional discovery

Judge Robinson recently considered defendant Daxtra Technologies Limited's ("Daxtra UK")' motion to dismiss plaintiff's complaint for lack of personal jurisdiction. Kenexa Brassring, Inc. v. Akken, Inc., et al., C.A. No. 12-660-SLR (D. Del. June 25, 2013). Daxtra UK is a Scottish company with places of business in the United Kingdom. Id. at 2. Defendant Daxtra Technologies Inc. ("Daxtra US") is a Delaware corporation and a subsidiary of Daxtra UK formed "for the purpose of marketing and selling software and providing support in the United States." Id.

To establish personal jurisdiction, the Court must determine whether there exists a basis for jurisdiction under Delaware's long arm statute, 10 Del C. sec. 3104(c)(1)-(4), and if so, whether the the defendant "purposefully availed" itself of the forum state such that it should reasonably anticipate being sued there. Id. at 4.

First, Kenexa argued that personal jurisdiction was appropriate "through direct contacts between Daxtra UK and the United States, including Delaware. Id. at 5. Kenexa pointed to the sale of a potentially infringing product in the United States that had been licensed to a U.S. company. Id. Judge Robinson found that this ground was not sufficient because it was unclear whether Kenexa would accuse that product of infringing the patents-in-suit. Id. Next, Kenexa asserted that personal jurisdiction was appropriate because Daxtra UK used its website to solicit job applicants in the U.S. Id. at 5-6. Judge Robinson rejected this ground because "Kenexa ha[d] not indicated any particular instance in which a U.S. applicant interacted with the website[.] Id. at 6.

Second, Kenexa argued that personal jurisdiction existed over Daxtra UK through contacts of its subsidiary, Daxtra US, pursuant to agency theory. Id. "Under agency theory, the court may attribute the actions of a subsidiary company to its parent where the subsidiary acts on the parent's behalf or at the parent's direction." Id. at 6-7 (quotations omitted). Four factors are relevant to the court's determination:

(1) the extent of overlap of officers and directors; (2) methods of financing; (3) the division of responsibility for day-to-day management; and (4) the process by which each corporation obtains its business.

Id. at 7 (quotations omitted).

Daxtra UK conceded that the officers and directors of Daxtra UK and Daxtra US overlapped completely. Id. Daxtra UK argued, however, that there was no overlap regarding the financing of the entities, and Judge Robinson found that Kenexa had not alleged otherwise, with reasonable particularity. Id. at 7-8. Regarding the third factor, Kenexa argued that Daxtra UK's CTO was assigned to Daxtra US, which was "indicative of his playing a larger role in the day-to-day management" of Daxtra US. Id. at 8. Daxtra UK responded that the CTO's re-assignment was temporary so that he could help "make sales calls and grow the business in the United States[.]" Id. Regarding the last factor, the court found that at least some of Daxtra US's business was obtained from Daxtra UK. Id. at 8-9.

In light of the foregoing, Judge Robinson concluded that "plaintiff ha[d] presented factual allegations that suggeste[d] with reasonable particularity the possible existence of the requisite contacts between Daxtra UK and Delaware." Id. at 9. Therefore, the Court permitted Kenexa to take jurisdictional discovery and denied Daxtra UK's motion, without prejudice to renew one month after the close of such discovery. Id. at 9-10.

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June 27, 2013

Judge Robinson issues claim construction opinion for patents involving plastic polymers and strikes expert testimony submitted in support of claim constructions

Judge Robinson recently construed the terms of patents-in-suit -- U.S. Patent Nos. 7,919,159; 7,943,216, and 7,879,930 -- related to "plastic materials with applications in packaging for oxygen-sensitive foods and beverages." INVISTA North America S.a.r.l. et al. v. M&G USA Corporation, et al., C.A. No. 11-1007-SLR-CJB (D. Del. June 25, 2013).

Judge Robinson construed the following terms:

"composition"
"ionic compatibilizer"
"copolyester containing a metal sulfonate salt"
"copolyester comprising a metal sulfonate salt"
"polyester"
"attached"
"metal sulfonate salt"
"cobalt salt"
"is present"
"melt blended resin" and "melt blend"
"a base polymer"
"transition metal catalyst"
"colorant"
"copolyester of polyethylene terephthalate"
"compatibilizer"

Judge Robinson also considered M&G's motion to strike INVISTA's expert testimony submitted in support of its opening claim construction brief, and "hours before the close of expert discovery." Id. at 7 n.7. INVISTA argued that its expert's testimony did not violate the scheduling order's provisions on disclosure of expert testimony because the submission merely provided "a background tutorial for purposes of claim construction." Id. Judge Robinson disagreed.

Claim construction is an issue highly relevant to infringement in this case. Even if lnvista's filing of new expert testimony at the close of expert discovery and without prior notice to M&G did not technically violate the scheduling order, it was inconsistent with the intent of the scheduling order.

Id. at 8

Judge Robinson agreed that "expert testimony can aid the court in claim construction," but struck INVISTA's expert testimony in this case, becuase "allowing new expert testimoony that ha[d] not been vetted through discovery would unduly prejudice M&G." Id.

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June 24, 2013

Judge Robinson Grants Motions to Dismiss for Lack of Standing Based on Lack of Ownership of Patents-in-Suit

Judge Robinson recently granted motions to dismiss for lack of standing filed by Amazon, Zappos, and Expedia in a patent infringement case brought by Walker Digital. See Walker Digital, LLC v. Expedia, Inc., et al., C.A. No. 11-313-SLR, Memorandum Op. at 1 (D. Del. June 19, 2013). The standing dispute stemmed from a settlement agreement between Walker Digital and eBay, which the defendants alleged transferred all rights to the patents-in-suit to eBay and terminated Walker Digital’s constitutional standing to pursue the litigation. Using standard principles of contract interpretation, Judge Robinson found that the settlement agreement at issue “ostensibly includes two separate conveyances of rights from plaintiff to eBay” but that both grants of patent rights included the patents-in-suit. Id. at 9. Furthermore, “[g]iven the complexity of plaintiff’s patent portfolio and the sophistication of the parties to the Settlement Agreement, the court relie[d] on the unambiguous granting language rather than the equivocal parol evidence [and an inconsistent warranty provision of the agreement] to divine what the parties meant to accomplish through the Settlement Agreement.” Id. at 11-13.

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June 21, 2013

Judge Robinson denies plaintiff’s motion to exclude, grants defendant’s motion to strike

In a recent order, Judge Sue L. Robinson denied plaintiff’s motion to exclude testimony regarding “commercial success of the [defendant’s] accused . . . products and services,” and granted defendant’s motion to strike plaintiff’s untimely infringement theories. Walker Digital, LLC v. Google Inc., et al., C.A. No. 11-309-SLR, at 1, 4-5 (D. Del. Jun. 21, 2013). Addressing plaintiff’s motion to exclude, Judge Robinson found that “the financial data supplied in the supplemental interrogatory is not well beyond or inconsistent with the testimony of [defendant’s] 30(b)(6) witness” that was deposed on financial topics. Id. at 3. Further, as Judge Robinson explained, plaintiff “had ample opportunity to seek the court's assistance in obtaining financial data earlier, but did not do so.” Id. Additionally, Judge Robinson found that defendant did not act in bad faith. Id. at 4. Judge Robinson found that, on balance, the Pennypack factors weighed against excluding defendant’s financial data. Id.

Turning to defendant’s motion to strike, Judge Robinson noted that in its expert report plaintiff included infringement theories with respect to accused instrumentalities that plaintiff did not address during discovery. See id. at 4-5. Judge Robinson noted that “[g]iven that [defendant] did not disclose these instrumentalities until the close of fact discovery, it is not surprising that these instrumentalities were not vetted by [defendant] and [plaintiff] through the fact discovery process.” Id. at 5. However, as Judge Robinson explained, in its expert report plaintiff “chose to present its infringement contentions in a conclusory fashion and did not provide an infringement chart.” Id. Judge Robinson additionally explained that defendant was not “given the opportunity to participate in the discovery process related” to the newly addressed instrumentalities. Id. Judge Robinson thus granted defendant’s motion to strike. Id.

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June 14, 2013

Judge Robinson denies plaintiff's motion to dismiss invalidity counterclaim and motion to strike affirmative defenses and introductory section in defendant's answer

Judge Robinson recently considered a motion to dismiss defendant's counterclaims and to strike certain affirmative defenses related to the invalidity of the patent in suit, as well as certain background information. Joao Bock Transaction Systems, LLC v. Jack Henry & Associates, Inc., C.A. No. 12-1138-SLR (D. Del. June 13, 2013). Judge Robinson denied plaintiff's motion finding that defendant's counterclaims provided sufficient detail to give rise to a plausible claim for relief. Id. at 4-5. Specifically, defendant's answer and counteclaim "include[d] numerous details indicating why Jack Henry believe[d] the '003 patent [was] invalid," such as because the patent in suit was a continuation of a patent determined to be invalid, and because prior art existed prior to a year before the patent application. Id. at 5.

Judge Robinson also denied plaintiff's motion to strike. Regarding defendant's introductory section, Judge Robinson found that the material, including references to prior litigation, had "evidentiary or legal signifcance," and should not be stricken. Id. at 5-6. Judge Robinson declined to strike defendant's affirmative defenses, finding that sufficient supporting facts were present in defendant's responsive pleading. Id. at 6.

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June 11, 2013

Judge Robinson denies film company's motion to transfer to California

In a recent memorandum opinion, Judge Sue L. Robinson denied a defendant’s motion to transfer to the Central District of California litigation involving a patented codec used for encoding video onto Blue-ray discs. FastVDO LLC v. Paramount Pictures Corp., Civ. No. 12-1427-SLR (D. Del. June 4, 2013). The plaintiff was a Florida limited liability company with headquarters in Florida, and was significantly smaller (with significantly less litigation experience) than the defendant, a Delaware corporation with its headquarters in California. Id. at 1, 4. The defendant argued that the allegedly infringing coding was performed by authoring houses operating primarily in California, but the Court disagreed, noting that the authoring houses were headquartered in California, but performed coding in facilities located in Indiana, Pennsylvania, and New York. Id. at 1. As a result, and combined with the fact that Blue-ray discs are sold across the country, the Court found that the alleged infringement did not occur principally in California. Id. at 4. The Court gave little weight to the defendant’s argument that the authoring houses’ documents would be outside the Court’s subpoena power, explaining that since “the authoring houses manufacture the Blue-ray discs at the behest of [defendant], it is unlikely they would refuse any reasonable request to produce information from their business partner in electronic format.” Id. at 5. The Court also found that while trial would be less expensive for the defendant in California, it would be more expensive for the plaintiff than litigating in Delaware. As a result, the Court explained that “[a]lthough Delaware is not the locus of any party’s business activities, it is a neutral forum and no more inconvenient for [defendant] than Florida, the locus of [plaintiff’s] business activities.” Id. at 6. All of this, combined with the fact that 24 other Blue-ray cases filed by the plaintiff were pending in Delaware, convinced the Court that transfer was not warranted. Id. at 7-8.

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May 29, 2013

Judge Robinson denies defendant’s motion for leave to amend allegations in answer

In a recent order, Judge Sue L. Robinson denied defendant’s motion for leave to amend paragraph 19 of its answer, which responded to plaintiff’s infringement allegations regarding U.S. Patent No. 6,647,450. Cradle IP, LLC v. Texas Instruments, Inc., C.A. No. 11-1254-SLR (D. Del. May 23, 2013). In paragraph 19, defendant originally alleged that it had made, used, sold, or offered to sell microprocessor and OMAP devices “utilizing split transaction buses with target device command buffers (insofar as that phrase is given its common meaning and not necessarily the meaning that may be ascribed to it as a result of any claim construction).” Id. at 1-2. On January 23, 2013, more than two months after the deadline to amend the pleadings, defendant filed its motion for leave, seeking to change paragraph 19 such that it would state that defendant “denies that its OMAP devices utilize split transaction buses with target device command buffers.” Id. at 3. Because defendant moved to amend its answer after the deadline to amend the pleadings, Judge Robinson’s analysis was guided by both Rules 15(a)(2) and 16(b)(4) of the Federal Rules of Civil Procedure. See id. at 3-7.

With respect to Rule 15(a)(2), Judge Robinson first addressed whether defendant’s delay was undue. Id. at 4. Defendant argued that its delay would “not place an unwarranted burden on the court or [plaintiff] because it put [plaintiff] on notice of its proposed amendment before any depositions occurred and before the close of fact discovery.” Id. at 4. Judge Robinson found, however, that defendant failed to explain why it “did not seek to amend before the expiration of the deadline to amend pleadings,” and also found that the amendment was not “based on any new evidence that has emerged during discovery.” Id. at 5. Judge Robinson therefore found the delay undue “[g]iven the lack of proper justification.” Id. Judge Robinson further found that the undue delay would be prejudicial to defendant. Id. at 7. The amendment, Judge Robinson explained, “does not merely add particularity to its pleadings; it seeks to remove a qualification in its answer such that the response becomes an outright denial.” Id. at 7. Judge Robinson further explained that plaintiff “relied upon [defendant’s] answer and prepared its case in accordance with those pleadings” and that “[t]o allow [defendant] to change the landscape of the litigation at this late date would be prejudicial to [plaintiff].” Id. Given that defendant’s undue delay would result in prejudice to plaintiff, Judge Robinson found that defendant failed to satisfy Rule 15(a)(2). See id. at 6-7.

Judge Robinson additionally found that defendant failed to meet the “good cause” requirement for amendment pursuant to Fed. R. Civ. P. 16(b)(4). Id. at 7-8. Judge Robinson noted that “the good cause standard under Rule 16(b) hinges on diligence of the movant, and not on prejudice to the non-moving party.” Id. at 7. As Judge Robinson explained, defendant failed to offer “any explanation as to why it could not reasonably meet the scheduling order’s November 1, 2012 deadline for amending the pleadings.” Id. at 8.

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May 28, 2013

Judge Robinson transfers litigation between Delaware corporations to the Northern District of California.

Judge Sue L. Robinson recently transferred a case between two Delaware corporations to the Northern District of California. Fortinet, Inc. v. FireEye, Inc., Civ. No. 12-1066-SLR (D. Del. May 16, 2013). Both parties were headquartered in Northern California. The plaintiff was significantly larger than the defendant, and had previously been involved at least five times in litigation in the Northern District of California. Id. at 1. The defendant, on the other hand, had no federal litigation history. Id. at 1-2. The Court recognized that the plaintiff’s preferred venue “remains a significant factor” in the Jumara analysis, id. at 4, but found that on balance, the case presented “extenuating circumstances”, including that both parties were headquartered in Northern California, the defendant was smaller and had no federal litigation experience, and the plaintiff was pursuing, in addition to its patent infringement claims, California state law claims for misappropriation of trade secrets and intentional interference with contractual relations and prospective economic advantage. Id. at 7.

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May 20, 2013

Judge Robinson Denies Motions to Transfer, Dismiss

Judge Sue Robinson recently considered motions to transfer and dismiss filed by patent infringement defendant Callidus Software. Plaintiff Versata Software is a Delaware corporation with a principal place of business in Texas, and Defendant Callidus is a Delaware corporation with a principal place of business in California. Callidus moved to transfer to the Northern District of California and to dismiss under Rule 12(b)(6), and Judge Robinson denied both motions. See Versata Software, Inc., et al. v. Callidus Software Inc., C.A. No. 12-931-SLR, Memo. Op. at 1-2 (D. Del. May 16, 2013).

Referring to her previous decision in Helicos Biosciences Corp. v. Illumina, Inc., 858 F. Supp. 2d 367 (D. Del. 2012), Judge Robinson noted that both parties preferred venue would be a legitimate venue. But because “‘convenience’ is separately considered in the transfer analysis, the court decline[d] [to] elevate a defendant’s choice of venue over that of a plaintiff based on defendant’s convenience.” Id. at 3-4. Carefully weighing all of the Third Circuit’s Jumara factors, Judge Robinson ultimately concluded that “Versata chose a legitimate forum which all parties have in common—their state of incorporation. As is usual in these cases, the convenience factors do not weigh in favor of transfer, because discovery is a local event and trial is a limited event. Although Delaware is not the locus of any party’s business activities, it is a neutral forum and no more inconvenient for Calllidus than Texas, the locus of Versata’s business activities. Given that both Versata and Callidus have experience litigating in multiple jurisdictions, the court is not persuaded that transfer is warranted in the interests of justice.” Id. at 3-6.

Judge Robinson then turned to Callidus’ motion to dismiss for failure to state a claim. Her Honor first found that with respect to “Versata’s claims of direct infringement . . . Versata’s complaint sufficiently identifies the accused software . . . as required by Fed. R. Civ. P. Form 18.” Id. at 9. Consistent with her practice in previous cases, Judge Robinson also found that Versata had adequately plead indirect infringement. Relying on Walker Digital LLC v. Facebook, Inc., 852 F. Supp. 2d 559 (D. Del. 2012), Judge Robinson held that the complaint’s allegation of knowledge of infringement as of the date of filing provided adequate notice under Global-Tech. Id. Furthermore, the pleading of induced infringement without identification of a specific customer was adequately supported because Callidus “licenses and/or sells the accused products” and Versata also alleged direct infringement. Finally, the pleading of contributory infringement was adequately supported because Versata alleged direct infringement and knowledge of lack of substantial non-infringing uses. Id. at 10. For these reasons, Judge Robinson found that all of the allegations of the complaint “satisfied the requirements of Twombly and Iqbal.” Id. at 7-10.

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