Case 3:22-cv-01832-WHO Document 39 Filed 07/06/22 Page 1 of 8
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`R.N. NEHUSHTAN TRUST LTD.,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Case No. 22-cv-01832-WHO
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`ORDER DENYING MOTION TO
`DISMISS
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`Re: Dkt. No. 28
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`Defendant.
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`Defendant Apple Inc. (“Apple”) moves to dismiss a complaint filed by plaintiff R.N.
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`Nehushtan Trust Ltd. (“RNN Trust”), alleging that Apple’s iPhones, iPads, and Watches directly
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`infringe on claims in two of RNN Trust’s patents. At issue is a technology directed at preventing
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`the hacking and cloning of devices, in part by using a “device unique security setting” to restrict
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`access to a “data mode” in which data can be read and written and the device’s settings changed.
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`Apple’s arguments depend on how the asserted claims are constructed; it is premature to construct
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`those claims now. RNN Trust sufficiently pleaded that the challenged elements of the asserted
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`claims are met, which is enough for the case to proceed. Apple’s motion to dismiss is DENIED.
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`BACKGROUND
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`RNN Trust holds the rights, title, and interest to U.S. Patent Nos. 9,642,002 (“the ’002
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`Patent”) and 9,635,544 (“the ’544 Patent”). Compl. [Dkt. No. 1] ¶ 1. The patents are directed to a
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`“cellular communication security technology” aimed at preventing the cloning and hacking of
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`devices. See id. ¶¶ 8-9. At a high level, the patents claim technology that includes, among other
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`components, an “access restrictor” where a “device unique security setting” must be used to access
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`a “data mode” that allows the reading and writing of data and the changing of settings on the
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`device. See id. ¶¶ 9, 12.
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`Case 3:22-cv-01832-WHO Document 39 Filed 07/06/22 Page 2 of 8
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`RNN Trust alleges that Apple sold devices—including its well-known and widely used
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`iPhones, iPads, and Watches—that directly infringe on “at least” Claim 5 of the ’002 Patent and
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`“at least” Claim 17 of the ’544 Patent. See id. ¶¶ 15, 19. Claim Five of the ’002 Patent claims:
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` A
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` cellular communication device comprising a processor, a memory and a data
`mode, said data mode allowing reading and writing of data in said memory and
`changing of settings on said cellular communication device, said settings
`comprising personal data, cellular communication device configuration data and
`technical data relating to the cellular communication device; wherein
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`said cellular communication device also comprises an access restrictor to restrict
`use of said data mode in accordance with a device unique security setting, the
`device unique security setting provided remotely to said cellular communication
`device using a predetermined security protocol;
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`said device unique security setting is obtained remotely and provided to the cellular
`communication device before the data mode is used;
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`said data mode permits actions comprising uploading, maintaining or replaying an
`operating system in said cellular communication device that are provided by a
`cellular provider using an active connection; the device further being configured to
`carry out one member of the group consisting of:
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`enabling said cellular communication device to use said data mode when it is
`determined that said device unique security setting is correct; and
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`disabling use of said data mode when said active connection is no longer active.
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`Compl., Ex. A (“’002 Patent) 22:49-23:8.
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`Claim 17 of the ’544 Patent claims:
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` A
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` cellular communication device comprising a processor, a memory and a data
`mode, said data mode allowing reading and writing of data and changing of settings
`on said cellular communication device by an active connection;
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`said settings comprising personal data, device configuration data and technical data
`relating to said cellular communication device;
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`said cellular communication device further comprising an access restrictor to
`restrict use of said data mode in response to a cellular communication device
`unique security setting;
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`wherein said device unique security setting is obtained remotely and provided to
`the cellular communication device before use of the data mode; said data mode
`being usable for transfer of icons to the cellular communication device; and
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`Case 3:22-cv-01832-WHO Document 39 Filed 07/06/22 Page 3 of 8
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`wherein said cellular communication device is associated with a client program for
`managing a predetermined communication protocol, and carrying out one member
`of the group consisting of:
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`setting said cellular communication device into said data mode when said device
`unique security setting is correct; and
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`disabling said data mode when said active connection is no longer active.
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`Id., Ex. B (“’544 Patent”) 23:45-24:2.
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`Apple moved to dismiss on May 23, 2022. Dkt. No. 28.
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`LEGAL STANDARD
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`Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint
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`if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, the
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`plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff
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`pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for
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`the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There
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`must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts
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`do not require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to
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`“raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555, 570.
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`In deciding whether the plaintiff has stated a claim upon which relief can be granted, the
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`court accepts her allegations as true and draws all reasonable inferences in her favor. See Usher v.
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`City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to
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`accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or
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`unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
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`DISCUSSION
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`Under section 271(a) of the Patent Act, “whoever without authority makes, uses, offers to
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`sell, or sells any patented invention, within the United States or imports into the United States any
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`patented invention during the term of the patent therefor, infringes the patent.” 35 U.S.C. §
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`271(a). A device must practice all elements of a claim to be liable for direct infringement.
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`Fortinet, Inc. v. Forescout Techs., Inc., No. 20-CV-03343-EMC, 2020 WL 6415321, at *11 (N.D.
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`Case 3:22-cv-01832-WHO Document 39 Filed 07/06/22 Page 4 of 8
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`Cal. Nov. 2, 2020). Accordingly, a direct infringement claim “does not satisfy the standards of
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`Twombly and Iqbal where it does not at least contain factual allegations that the accused product
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`practices every element of at least one exemplary claim.” AlterG, Inc. v. Boost Treadmills LLC,
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`388 F. Supp. 3d 1133, 1142-43 (N.D. Cal. 2019) (citation omitted).
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`The majority of RNN Trust’s allegations regarding the infringement of the asserted claims
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`are set forth in six claim charts totaling approximately 100 pages, which are incorporated by
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`reference into its complaint. See Compl. ¶¶ 15, 20 (citing Exs. C-H). Each chart covers the claim
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`limitations with respect to each of allegedly infringing Apple products—iPhones, iPads, and
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`Watches—and cites evidence including user and security guides in support. See id., Exs. C-H.
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`Apple focuses on three limitations found within both of the asserted claims.
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`I.
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`“Data Mode” and “Settings” Limitations
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`Apple argues that RNN Trust has failed to state a claim for direct infringement because the
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`complaint does not plausibly allege that in Apple’s devices, “the settings adjusted while in ‘data
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`mode’ can only be changed when in ‘data mode.’” Mot. to Dismiss (“MTD”) [Dkt. No. 28] 6:16-
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`17 (emphasis in original). Apple reads the claims to “require that certain security protocols are
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`satisfied ‘before the data mode is used’ and any claimed settings are adjusted.” Id. at 6:17-19. It
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`acknowledges that RNN Trust “points to certain security protocols used for software updates to
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`allegedly show the Apple devices meet the claims,” but argues that it does not allege that other
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`settings are changed using those protocols. Id. at 6:19-23.
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`Apple contends that many of the personal data settings that RNN Trust cites in its claim
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`charts (“Apple ID and iCloud data, personal health data, emergency medical ID data, and data
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`related to Apply pay”) can be changed even if the Apple device is not connected to a cellular
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`network, either because the user has turned off the device’s cellular connectivity or because the
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`device operates only with wireless internet. See id. at 8:7-24 (citing Ex. C at 5.2).1 Apple makes
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`the same argument about the configuration data (which, according to the claim charts, includes
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`1 The numeric references to the limitations come from RNN Trust’s claim charts. Although the
`charts include allegations regarding each Apple device (iPhones, iPads, and Watches) the
`allegations are virtually identical with respect to the challenged limitations (5.1iii, 5.2, and 5.3i).
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`Case 3:22-cv-01832-WHO Document 39 Filed 07/06/22 Page 5 of 8
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`“data regarding notifications, sounds and haptics, date and time and fonts”). See id. at 8:24-27;
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`see also Ex. C. at 5.2. Because the claimed data mode “requires an active, secure connection to a
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`cellular network,” Apple contends, the limitation is not met. See id. at 8:16-19.
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`Additionally, Apple argues that RNN Trust has failed to allege that technical data settings
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`on Apple devices can be changed at all. Id. at 9:20-22. According to RNN Trust, technical
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`information “can include the model number and serial number” of the device. See Ex. C at 5.2.
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`Pointing to the section of the iOS 14 User Guide that RNN Trust cites, Apple argues that a user
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`can only view the model and serial numbers on an Apple device—not change it. See MTD at 9:1-
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`22. Accordingly, Apple argues, RNN Trust’s “assertions are factually insupportable by the very
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`evidence [it] cites.” Id. at 9:1-2.
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`According to RNN Trust, these arguments amount to claim construction, which would be
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`prematurely decided on a motion to dismiss. See Oppo. [Dkt. No. 29] 2:16-4:13. It rejects
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`Apple’s reading of the claims—“that the settings only can be changed in a single data mode, and
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`that each of the three types of settings must be changed in a single data mode”—as too narrow,
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`pointing to what it describes as “non-exclusive” language in the specification stating that the data
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`mode “allows any access to the device to change settings and/or accept commands.” See id. at
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`2:25-26, 4:13-22 (citing ‘002 Patent at 1:64-2:1). It also describes the claim language itself as
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`“permissive”—that the data mode “allows access to the device to change settings”—rather than
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`“mandatory or exclusionary.” Id. at 4:23-5:3.
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`Apple’s arguments boil down to one primary issue: whether, according to the asserted
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`claims, specific settings can only be changed while the device is in data mode. This is not evident
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`from the plain language of the asserted claims—the word “only” is nowhere to be found. See ’002
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`Patent at Claim 5; ’544 Patent at Claim 17. Rather, in making their points for and against their
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`respecting reading of the claim language, the parties cite to the patents’ abstracts and
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`specifications. See, e.g., Oppo. at 4:24 (“the pertinent language from the specification”); Reply
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`[Dkt. No. 33] 3:5-22 (citing the abstracts). This is classic claim construction. In arguing what the
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`claim terms mean, Apple misses the point: the dispute over those terms indicates that construction
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`is necessary to understanding the claims.
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`Case 3:22-cv-01832-WHO Document 39 Filed 07/06/22 Page 6 of 8
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`Claim construction is not appropriate on a motion to dismiss as a general rule. Nalco Co.
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`v. Chem-Mod, LLC, 883 F.3d 1337, 1349 (Fed. Cir. 2018) (holding that claim construction
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`disputes were “not suitable for resolution on a motion to dismiss”); Fujitsu Ltd. v. Belkin Int’l Inc.,
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`782 F. Supp. 2d 868, 889-90 (N.D. Cal. 2011) (holding that a motion to dismiss is “not the proper
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`time to initiate claim construction,” in part because it “would be starting the process of evaluating
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`the merits” of the case). There is no good reason to construe the claims now.
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`At this point, it is enough that RNN Trust alleges that Apple devices have a data mode that
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`allows the reading and writing of data and the changing of settings, including during software
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`updates, (satisfying limitation 5.1iii) and an access restrictor that restricts the use of the data mode
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`until the device unique security setting is received (satisfying limitation 5.3i). See Compl., Exs.
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`C-E at 5.1iii, 5.3i. The claim charts allege sufficiently specific facts in support. Whether these
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`elements are in fact met will depend on the construction of the claims at issue and any evidence
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`that the parties ultimately proffer. That will occur at a later stage of litigation.
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`Regarding limitation 5.2, Apple makes much of its point that “many of the settings” that
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`RNN Trust cites can be changed regardless of connectivity—or not at all. See MTD at 8:16-9:22.
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`But RNN Trust’s claim charts do not limit the data to those particular examples. Rather, they use
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`expansive language: “personal data can relate to Apple ID and iCloud data, personal health data . .
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`.”; “[c]onfiguration data includes, for example, data regarding notifications, sounds and haptics,
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`date and time and fonts”; “[t]echnical information can include the model number and serial
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`number.” See, e.g., Compl., Ex. C at 5.2 (emphasis added). There may be other examples of
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`settings that cannot be changed on Apple devices unless those devices are in data mode. Again,
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`for the purposes of surviving a motion to dismiss, RNN Trust’s allegations suffice.
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`II.
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`“Disabling Use of Said Data Mode” Limitation
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`The parties make essentially the same points regarding the final limitation found within
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`each of the asserted claims: “disabling use of said data mode when said active connection is no
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`longer active.” See ’002 Patent at 23:7-8; ’544 Patent at 24:1-2.2
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`2 The claim language of the ’544 Patent differs slightly: “disabling said data mode when said
`active connection is no longer active.” See ’544 Patent at 24:1-2.
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`Case 3:22-cv-01832-WHO Document 39 Filed 07/06/22 Page 7 of 8
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`Apple’s argument is two-fold. First, it asserts that RNN Trust made only a conclusory,
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`unsupported argument that the limitation is infringed upon because “[a] person of ordinary skill
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`would understand that the Apple [device] disables the data mode at the end of the session.” See
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`MTD at 10:27-11: 14 (citing Compl., Exs. C-E at 5.5iii; Exs. F-H at 17.5iii). Apple next reiterates
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`its earlier point, arguing that the limitation is not met because Apple products “do not only allow
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`the user to change device settings during the ‘data mode.’” Id. at 11:15-16.
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`In response, RNN Trust again argues that this is a matter of claim construction. See Oppo.
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`at 5:23-6:21. It disputes that the disabling limitation is a requirement of either of the asserted
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`claims, arguing that the “claim language in both patents show that it is just one of two options.”
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`See id. at 6:1-2. In support, it points to Claim 5 of the ’002 Patent, which states:
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`the device further being configured to carry out one member of the group
`consisting of:
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`enabling said cellular communication device to use said data mode when it is
`determined that said device unique security setting is correct; and
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`disabling use of said data mode when said active connection is no longer active.
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`’002 Patent at 23:1-8. Similarly, Claim 17 of the ’544 Patent asserts:
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`carrying out one member of the group consisting of:
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`setting said cellular communication device into said data mode when said device
`unique security setting is correct; and
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`disabling said data mode when said active connection is no longer active.
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`’544 Patent at 23:63-24:2. According to RNN Trust, the one member of the group, consisting of
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`“enabling” and “disabling,” or “setting” and “disabling,” is critical. See Oppo. at 6:1-21. It
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`argues that because the claim chart alleges that the accused devices satisfy the first option
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`(“enabling” or “setting”) the limitations are met. See id.
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`I agree that RNN Trust’s allegations about the infringement of the disabling limitation are
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`sparse. But the claim language does not clearly state that this limitation is in fact required for the
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`patented technology to function. Rather, in reading the limitations together, it appears that all that
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`is required is one of the two limitations. In any event, this is a question that will be answered
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`Case 3:22-cv-01832-WHO Document 39 Filed 07/06/22 Page 8 of 8
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`upon claim construction; it is too early to answer now.
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`CONCLUSION
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`For the reasons stated above, Apple’s motion to dismiss is DENIED.
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`IT IS SO ORDERED.
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`Dated: July 6, 2022
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`William H. Orrick
`United States District Judge
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