Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 1 of 23
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No. 21-cv-03027-RM-MEH
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`CYPH, INC.,
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`v.
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`
`
`Plaintiff,
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`ZOOM VIDEO COMMUNICATIONS, INC.,
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`Defendant.
`
`
`DEFENDANT ZOOM VIDEO COMMUNICATIONS, INC.’S MOTION TO DISMISS
`PURSUANT TO FED. R. CIV. P. 12(B)(6)
`
`CERTIFICATE OF COMPLIANCE
`
`
`
`
`
`Pursuant to this Court’s Civil Practice Standards, the undersigned counsel certifies that on
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`December 22, 2021, counsel for Defendant Zoom Video Communications, Inc. conferred by
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`videoconference with counsel for Plaintiff Cyph, Inc. concerning this motion. Counsel discussed
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`the substance of the motion, including the specific grounds for seeking dismissal of each claim of
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`the Complaint. Counsel for Plaintiff expressed disagreement with these grounds and that Plaintiff
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`does not intend to proactively amend its complaint. Pursuant to Local Patent Rule 17, the brief and
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`memorandum of points and authorities supporting this motion contains less than 10,000 words.
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`
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`

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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 2 of 23
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .......................................................................................................1
`FACTUAL BACKGROUND ......................................................................................1
`A.
`Cyph and the Asserted Patents .....................................................................1
`B.
`Zoom ............................................................................................................2
`LEGAL STANDARD ..................................................................................................2
`ARGUMENT ...............................................................................................................3
`A.
`Cyph Fails to Support Its Direct Infringement Allegations with Facts
`Sufficient to Make them Plausible ...............................................................3
`1.
`Cyph Fails to Sufficiently Identify the Accused Devices ................4
`2.
`Cyph’s Complaint Contains No Factual Assertions
`Regarding Any of the Accused Products .........................................6
`Cyph’s Claim Charts Are Generic and Not Tied to the
`Patented Invention ...........................................................................8
`Cyph Fails to Allege that Zoom Itself Practices the Asserted
`Method Claims ...............................................................................10
`Cyph Fails to Allege Facts to Support Its Claims of Indirect
`Infringement ...............................................................................................12
`1.
`Cyph Fails to State a Claim for Induced Infringement ..................12
`2.
`Cyph Fails to State a Claim for Contributory Infringement ..........14
`Cyph Fails to State a Claim for Willful Infringement ...............................16
`C.
`CONCLUSION ..........................................................................................................17
`
`I.
`II.
`
`III.
`IV.
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`V.
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`
`
`B.
`
`3.
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`4.
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`

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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 3 of 23
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`
`
`
`
`Cases
`
`TABLE OF AUTHORTIES
`
`
`
`
`Page(s)
`
`Addiction and Detoxification Inst. L.L.C. v. Carpenter,
`620 Fed. Appx. 934 (Fed. Cir. 2015) ...................................................................................5, 14
`
`Akamai Techs., Inc. v. Limelight Networks, Inc.,
`797 F.3d 1020 (Fed. Cir. 2015) (en banc)..........................................................................10, 11
`
`Apollo Fin., LLC v. Cisco Sys., Inc.,
`190 F. Supp. 3d 939 (C.D. Cal. 2016) .......................................................................................7
`
`Artrip v. Ball Corp.
`735 Fed. Appx. 708 (Fed. Cir. 2018) .................................................................................4, 5, 6
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .......................................................................................................1, 2, 3, 7
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .....................................................................................................1, 2, 7, 16
`
`In re Bill of Lading Transmission & Processing Sys. Pat. Litig.,
`681 F.3d 1323 (Fed. Cir. 2012)................................................................................................15
`
`Boston Sci. Corp. v. Nevro Corp.,
`415 F. Supp. 3d 482 (D. Del. 2019) ...........................................................................................4
`
`Bot M8 LLC v. Sony Corp. of Am.,
`4 F.4th 1342 (Fed. Cir. 2021) ............................................................................................3, 4, 9
`
`Chapterhouse, LLC v. Shopify, Inc.
`2018 WL 6981828 (E.D. Tex. Dec. 11, 2018) ...........................................................................8
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`135 S.Ct. 1920 (2015) ........................................................................................................13, 15
`
`Dynacore Holdings Corp. v. U.S. Philips Corp.,
`363 F.3d 1263 (Fed. Cir. 2004)................................................................................................16
`
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) .................................................................................................................12
`
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`136 S.Ct. 1923 (2016) ........................................................................................................16, 17
`
`
`
`i
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`

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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 4 of 23
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`
`
`Hogan v. Winder,
`762 F.3d 1096 (10th Cir. 2014) .................................................................................................2
`
`Int’l Bus. Machines Corp. v. Booking Holdings Inc.,
`775 F. Appx 674 (Fed. Cir. 2019) ............................................................................................13
`
`Iqbal. Straight Path IP Grp, Inc. v. Vonage Holdings Corp.,
`C.A. No. 14-502 (JLL), 2014 WL 1266623 (D.N.J. Mar. 26, 2014) .......................................16
`
`Kajeet, inc. v. Gryphon Online Safety, Inc.,
`No. 19-2370 (MN), 2021 WL 780737 (D. Del. Mar. 1, 2021) ..................................................7
`
`Lifetime Indus., Inc. v. Trim-Lock, Inc.,
`869 F.3d 1372 (Fed. Cir. 2017)..................................................................................................3
`
`Macronix Int’l Co., Ltd. v. Spansion Inc.,
`4 F. Supp. 3d 797 (E.D. Va. 2014) ............................................................................................7
`
`Microsoft Corp. v. DataTern, Inc.,
`755 F.3d 899 (Fed. Cir. 2014)..................................................................................................14
`
`Nalco Co. v. Chem-Mod, LLC,
`883 F.3d 1337 (Fed. Cir. 2018)..................................................................................................3
`
`North Star Innovations, Inc. v. Micron Tech., Inc.,
`No. 17-506-LPS-CJB, 2017 WL 5501489 (D. Del. Nov. 16, 2017) .........................................7
`
`NovaPlast Corp. v. Inplant, LLC,
`No. 20-7396 (KM) (JBC), 2021 WL 389386 (D.N.J. Feb. 3, 2021) .........................................7
`
`Novartis Pharms. Corp. v. Eon Labs Mfg., Inc.,
`363 F.3d 1306 (Fed. Cir. 2004)..........................................................................................13, 14
`
`Swirlate IP LLC v. Keep Truckin, Inc.,
`CV 20-1283-CFC, 2021 WL 3187571 (D. Del. July 28, 2021).................................................9
`
`Symantec Corp. v. Computer Assocs. Int’l, Inc.,
`522 F.3d 1279 (Fed. Cir. 2008)................................................................................................14
`
`Trustees of Boston Univ. v. Everlight Elec. Co., Ltd.,
`212 F. Supp. 3d 254 (D. Mass. 2016) ......................................................................................17
`
`Vita-Mix Corp. v. Basic Holding, Inc.,
`581 F.3d 1317 (Fed. Cir. 2009)................................................................................................13
`
`
`
`
`
`
`
`ii
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`

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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 5 of 23
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`
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`Statutes
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`35 U.S.C. § 271(c) .........................................................................................................................16
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`35 U.S.C. § 284 ..............................................................................................................................16
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`iii
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`

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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 6 of 23
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`
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`I.
`
`INTRODUCTION
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`Plaintiff Cyph, Inc. (“Cyph”) alleges that Defendant Zoom Video Communications
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`(“Zoom”) infringes six patents related to methods of data encryption. But Cyph’s allegations are
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`threadbare, conclusory, and fall well short of the pleading standard established by the Supreme
`
`Court in Twombly and Iqbal.
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`Cyph asserts that a wide swath of Zoom products infringes its encryption patents, yet the
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`complaint merely parrots the language of the patent claims and cites to broad and generic portions
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`of Zoom documents. This type of “kitchen sink” complaint is insufficient, because it fails to give
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`Zoom notice of which products Cyph actually accuses of infringing, and fails to give Zoom notice
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`of how those products allegedly infringe.
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`Furthermore, Cyph cannot state a claim for direct infringement against Zoom because its
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`own contentions recognize that certain of the claimed steps are carried out, not by Zoom, but by
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`end-users. Nor has it stated a valid claim for indirect infringement, instead relying once again on
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`conclusory assertions that do nothing more that recite the bare legal standard.
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` In view of these fundamental flaws in Cyph’s complaint, Zoom respectfully requests that
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`the complaint be dismissed in its entirety.
`
`II.
`
`FACTUAL BACKGROUND
`
`A.
`
`Cyph and the Asserted Patents
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`Cyph claims to offer an end-to-end encryption (“E2EE”) enabled communications and
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`media platform that allows uncensored communications and information exchanges and
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`incorporates its patented E2EE technologies. ECF No. 1 (“Compl.”) ¶¶ 15-16. On November 5,
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`2021, Cyph sued Zoom, asserting infringement of six U.S. Patents: (1) U.S. Patent No. 9,948,625,
`
`entitled “Encrypted Group Communication Method”; (2) U.S. Patent No. 10,701,047, also entitled
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`“Encrypted Group Communication Method”; (3) U.S. Patent No. 10,020,946, entitled “Multi-key
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`
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`1
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`

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`
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`Encryption Method”; (4) U.S. Patent No. 9,794,070, entitled “Method of Ephemeral Encrypted
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`Communications”; (5) U.S. Patent No. 10,003,465, entitled “A System and Method of Encrypting
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`Authentication Information”; and (6) U.S. Patent No. 9,906,369, entitled “A System and Method
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`of Cryptographically Signing Web Applications” (collectively, the “Asserted Patents”). These
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`patents relate generally to methods and systems for encrypted communications, including E2EE.
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`Cyph asserts these patents against Zoom’s suite of videoconferencing software products.
`
`B.
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`Zoom
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`As noted in Zoom’s recently filed motion to transfer venue, Zoom is headquartered in San
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`Jose and has been developing innovative collaboration technologies since its founding in 2011.
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`Zoom offers a variety of products related to digital communications, including video conferencing,
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`webinars, chat, and phone, among others. See e.g., Compl. ¶ 29 (noting “Zoom Meetings, Zoom
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`Marketplace, Zoom Video Webinars, Zoom Chat, Zoom Phone Systems, Zoom Events, Zoom
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`Rooms and Workspaces, [and] Zoom Developer Platform”).
`
`III. LEGAL STANDARD
`
`Federal Rule of Civil Procedure 12(b)(6) instructs that a complaint should be dismissed
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`when it fails to “give the defendant fair notice of what the . . . claim is and the grounds upon which
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`it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted) (alteration in
`
`original). The complaint must plead “enough facts to state a claim to relief that is plausible on its
`
`face.” Id. at 570; Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014). The “mere possibility
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`of misconduct” is not enough. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A complaint that
`
`alleges facts that are merely consistent with liability “stops short of the line between possibility
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`and plausibility” and should be dismissed. Twombly, 550 U.S. at 546. While the Court generally
`
`accepts a complaint’s allegations as true, it is “not bound to accept as true a legal conclusion
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`couched as a factual allegation.” Iqbal, 556 U.S. at 678.
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`
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`2
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`

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`
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`In the patent infringement context, a complaint must “place the alleged infringer ‘on notice
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`of what activity . . . is being accused of infringement.’” Lifetime Indus., Inc. v. Trim-Lock, Inc.,
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`869 F.3d 1372, 1379 (Fed. Cir. 2017) (quoting K-Tech Telecomms., Inc. v. Time Warner Cable,
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`Inc., 714 F.3d 1277, 1284 (Fed. Cir. 2013)). While the Federal Rules of Civil Procedure do not
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`necessarily require an element-by-element analysis, “[t]he level of detail required in any given
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`case will vary depending up on a number of factors, including the complexity of the technology,
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`the materiality of any given element to practicing the asserted claim(s), and the nature of the
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`allegedly infringing device.” Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1353 (Fed. Cir.
`
`2021). “Accordingly, a plaintiff cannot assert a plausible claim for infringement under the
`
`Iqbal/Twombly standard by reciting the claim elements and merely concluding that the accused
`
`product has those elements.” Id. Rather, “[t]here must be some factual allegations that, when
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`taken as true, articulate why it is plausible that the accused product infringes the patent claim.” Id.
`
`IV. ARGUMENT
`
`A.
`
`Cyph Fails to Support Its Direct Infringement Allegations with Facts
`Sufficient to Make them Plausible
`
`The factual allegations in “[t]he complaint must place the potential infringer on notice of
`
`what activity is being accused of infringement.” Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337,
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`1350 (Fed. Cir. 2018) (cleaned up). Cyph’s Complaint does not provide this notice for at least
`
`three reasons. First, the complaint accuses broad categories of products purported sold by Zoom,
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`but fails to specify what actual products it believes are infringing. Second, Cyph’s complaint does
`
`not contain any actual factual allegations about how those products purportedly infringe—and,
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`instead, merely parrots the claim language and makes the bare assertion that Zoom’s products
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`perform the requisite steps; the few facts which Cyph cites in its claim charts relate only the generic
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`use of encryption and are not tied to the specific types of data encryption that are the subject of the
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`
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`3
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`

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`
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`patents’ claims. Finally, Cyph’s contentions acknowledge that numerous steps of the claimed
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`processes are carried out, not by Zoom, but by the end user.
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`1.
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`Cyph Fails to Sufficiently Identify the Accused Devices
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`In its Complaint, Cyph accuses a broad array of products and services, which it has elected
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`to break into three categories: Zoom Apps, Zoom Device, and Zoom Products. It defines the first
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`of these categories, Zoom Apps, as certain unidentified “application software for Zoom’s
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`communication services.” This vague accusation fails to specify which software products are even
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`accused of infringement, much less provide “factual allegations that, when taken as true, articulate
`
`why it is plausible that the accused product infringes the patent claim.” Bot M8, 4 F.4th at 1353;
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`Boston Sci. Corp. v. Nevro Corp., 415 F. Supp. 3d 482, 489 (D. Del. 2019) (“To provide notice, a
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`plaintiff must generally do more than assert that the product infringes the claim; it must show how
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`the defendant plausibly infringes by alleging some facts connecting the allegedly infringing
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`products to the claim elements.”) (emphasis in original).
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`Cyph’s accusation regarding the “various hardware devices” that constitute the “Zoom
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`Devices” suffers from the same flaw. Because neither the Complaint nor the accompanying charts
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`refer to any particular hardware devices, it is impossible to determine what devices are accused
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`and how Cyph alleges they infringe. This is especially perplexing in this instance because Zoom
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`itself is not a hardware manufacturer.
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`A complaint as vague as Cyph’s fails to state a claim and should be dismissed. The Federal
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`Circuit’s decision in Artrip v. Ball Corp. is instructive. 735 Fed. Appx. 708 (Fed. Cir. 2018).
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`There, the Court examined a complaint that described the patents and parties and alleged that the
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`defendant infringed the patents-in-suit “by use of one or more of the machines at least at the Bristol
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`Plant.” Id. at 714. The only other form of identification was a statement that the machines were
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`systems for “forming and attaching lift-tabs to can ends” that included each element of each
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`4
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`
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`asserted claims. Id. The Federal Circuit found this insufficient to satisfy the Rule 8(a) pleading
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`standard because it did not “sufficiently identify, for example, by photograph or name, any of the
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`particular machines that allegedly infringe other than by broad functional language.” Id. at 715.
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`The same is true of Cyph’s generic accusations, which refer only to broad categories of “Apps”
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`and “Devices” without sufficiently identifying which of these items allegedly infringe the Asserted
`
`Claims. See also Addiction and Detoxification Inst. L.L.C. v. Carpenter, 620 Fed. Appx. 934, 937
`
`(Fed. Cir. 2015) (Finding that, even under the since-abrogated Form 18 pleading standards,
`
`“[t]here must be some allegation of specific services or products of the defendants which are being
`
`accused.”)
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`The third category of accused “Zoom Products” fares no better. While Cyph has listed a
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`number of purportedly accused products, the Complaint fails to demonstrate how any of these
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`products—much less all of them—perform the claimed methods. The allegations found in Cyph’s
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`claim charts only serve to inject further ambiguity into this issue and so do not save the complaint.
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`For each element, Cyph either directly copies the claim language with no direct allegation against
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`Zoom, or alleges only that “Zoom Products” satisfy the required limitation. However, neither the
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`charts nor the documents they cite specify which of the nine products Cyph has identified as the
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`“Zoom Products” meet the claim limitations. In some instances, the cited document affirmatively
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`states that its contents do not apply to certain of the accused products. For instance, the E2E
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`Encryption for Zoom Meetings document extensively cited throughout the claim charts explains
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`that it does not outline a solution for Zoom’s webinar product, the Zoom Chat product, or dial-in
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`and SIP/H.323 phones using the Zoom Phone product. Declaration of Andrew T. Jones (“Jones
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`Decl.”), Ex. A, at 6. Because it is not possible to determine which products Cyph accuses of
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`5
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`
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`infringement, the charts fail to put Zoom “on notice as to what [it] must defend.” Artrip, 735 Fed.
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`Appx. at 715 (citation omitted).
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`2.
`
`Cyph’s Complaint Contains No Factual Assertions Regarding Any of
`the Accused Products
`
`Cyph’s Complaint does not provide any factual assertions supporting its infringement
`
`allegations, instead simply stating that “[u]pon information and belief, Zoom makes, sells, offers
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`to sell, uses, and import [sic] Zoom Products, which infringe at least Claim [X] of the [’XXX]
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`Patent.” See Compl. ¶¶ 38, 48, 58, 63, 68, 82. With respect to each of the Asserted Claims, the
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`Complaint adds little more, instead directly parroting the claim language and alleging that “Zoom
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`Products” meet the limitation. The rote nature of these accusations can be clearly seen in the chart
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`below, which provides an exemplary mapping of the language from claim 1 of the ’625 patent onto
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`the allegations in Cyph’s Complaint.
`
`’625 Patent Claim 1
`Generating a shared symmetric key to begin a
`communication session among a group of
`users by a first user
`
`Distributing by the first user, the generated
`shared symmetric key to each user in the
`group of users;
`Communicating within the communication
`session among a group of users
`
`Wherein each user encrypts a message to the
`group of users to be distributed through the
`communication session using the generated
`shared symmetric key, and each user decrypts
`a message received from the communication
`
`Cyph’s Allegation
`“Zoom Products, for example, Zoom’s web
`meeting system, Zoom online meeting via
`Zoom Apps, Zoom chats, and webinar
`program, are responsible for generating a
`shared symmetric key to begin a
`communication session among a group of
`users by a first user.” Compl. ¶ 40
`“Zoom Products, for example, Zoom’s web
`meeting system, Zoom online meeting via
`Zoom Apps, Zoom chats, and webinar
`program, are responsible for distributing by
`the first user, the generated shared
`symmetric key to each user in the group of
`users; communicating within the
`communication session among a group of
`users.” Compl. ¶ 41
`“[I]n Zoom products, each user encrypts a
`message to the group of user to be
`distributed through the communication
`session using the generated shared
`symmetric key, each user decrypts a
`message received from the communication
`
`
`
`6
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`

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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 12 of 23
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`
`
`
`
`’625 Patent Claim 1
`session using the generated shared symmetric
`key.
`Wherein additional users are added to the
`existing communication session when the first
`user distributes to the additional users the
`generated shared symmetric key.
`
`Cyph’s Allegation
`session using the generated shared
`symmetric key.”Compl. ¶ 42
`“[I]n Zoom Products, additional users are
`added to the existing communication
`session, when the first user distributes to
`the additional users the generated shared
`symmetric key.” Compl. ¶ 43.
`Courts have time and again explained that this type of threadbare allegation is insufficient
`
`to state a claim for patent infringement. See Macronix Int’l Co., Ltd. v. Spansion Inc., 4 F. Supp.
`
`3d 797, 804 (E.D. Va. 2014) (a complaint that “simply alleges that each element of a cited claim
`
`is infringed and then parrot[s] the claim language for each element . . . simply does not satisfy the
`
`notice and showing requirements of Rule 8(a) as interpreted by Twombly and Iqbal.”); North Star
`
`Innovations, Inc. v. Micron Tech., Inc., No. 17-506-LPS-CJB, 2017 WL 5501489, at *2 (D. Del.
`
`Nov. 16, 2017) (finding a complaint insufficient for “merely copying the language of a claim
`
`element, and then baldly stating (without more) that an accused product has such an element.”);
`
`Apollo Fin., LLC v. Cisco Sys., Inc., 190 F. Supp. 3d 939, 943 (C.D. Cal. 2016) (finding that a
`
`complaint is insufficient when it “simply identifies the allegedly infringing products and parrots
`
`the language of a direct patent infringement claim.”); NovaPlast Corp. v. Inplant, LLC, No. 20-
`
`7396 (KM) (JBC), 2021 WL 389386, at *7 (D.N.J. Feb. 3, 2021) (“[T]he Complaint purports to
`
`describe the Accused Products by parroting—and in some instances directly copying—the claims
`
`language. . . . But there are no allegations that relate the quoted claims language to the Accused
`
`Products in a factual manner.”); Kajeet, inc. v. Gryphon Online Safety, Inc., No. 19-2370 (MN),
`
`2021 WL 780737, at *9 (D. Del. Mar. 1, 2021) (dismissing a complaint because “the only
`
`allegation that Plaintiff sets forth is a recitation of the activities from 35 U.S.C. § 271(a)
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`purportedly attributable to [defendant] and that the accused products ‘practice’ or ‘embody’ the
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`identified claims.”).
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`
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`7
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`
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`3.
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`Cyph’s Claim Charts Are Generic and Not Tied to the Patented
`Invention
`
`Cyph has elected to present what few factual allegations it has in the form of claim charts
`
`attached to the Complaint. But, just like the complaint, Cyph’s claim charts fail to provide factual
`
`allegations sufficient to support an inference that Zoom infringes any claim of the Asserted Patents.
`
`In Chapterhouse, LLC v. Shopify, Inc., Judge Gilstrap examined a claim chart that broke
`
`down the patent claim into discrete elements and provided a screenshot of the defendant’s website
`
`in support of each element. 2018 WL 6981828, at *2 (E.D. Tex. Dec. 11, 2018). He rejected
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`plaintiff’s argument that this constituted sufficient factual support, finding that “[w]hile
`
`screenshots may be useful in laying out a plausible allegation of patent infringement, Plaintiff must
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`further allege how the screenshots meet the text of the exemplary claim in order to lay out sufficient
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`factual allegations[.]” Id. Here, Cyph has done even less than the Chapterhouse plaintiff; rather
`
`than provide screenshots of accused features, Cyph’s charts provide nothing more than bare, non-
`
`specific citations to various Zoom documents—in many cases wholly unrelated to the proposition
`
`they are cited in support of.
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`Notably, the claim charts lack factual allegations sufficient to support an inference that
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`Zoom practices every step of at least one claim of each Asserted Patent. By way of example,
`
`Cyph’s claim chart for the ’047 patent cites to a single document as support for its generic
`
`allegation that “the first user (= host) is the user initiating the group communication session.” ECF
`
`No. 1-8 at 2. In this document, Cyph points to three sections: (1) “Application security”, (2) “Chat
`
`encryption,” and (3) “End-to-end encryption.” Id. The cited “Application security” section
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`consists of a single sentence stating merely that “Zoom can encrypt all real-time media content at
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`the application layer using Advanced Encryption Standard (AES)”—a statement completely
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`unrelated to the identity of the user initiating a group communication session. Likewise, the “Chat
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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 14 of 23
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`encryption” section states merely that “Zoom chat encryption allows for a secured communication
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`where only the intended recipient can read the secured message”—again, nothing related to
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`initiating a communication session. Finally, the section on “End-to-end encryption” describes only
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`the basic concept behind end-to-end encryption, nothing about initiating a communication session:
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`Jones Decl. Ex. B. This is merely one example of the myriad inapposite citations throughout the
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`charts provided by Cyph.
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`In other instances, Cyph’s charts cite to large portions of documents without specifying
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`what information contained within those sections purportedly supports a plausible inference that
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`any of Zoom’s products—much less any particular Zoom product—meet the asserted limitation.
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`Courts have consistently rejected this type of “kitchen sink” approach to pleading, noting that “it
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`is the quality of the allegations, not the quantity, that matters.” Bot M8, 4 F.4th at 1354; see also
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`Swirlate IP LLC v. Keep Truckin, Inc., CV 20-1283-CFC, 2021 WL 3187571, at *2 (D. Del. July
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`28, 2021) (Finding links to pages from the defendant’s website insufficient because “the Complaint
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`fails to cite or identify with specificity the information on each website that explains and connects
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`the steps that are performed using the accused product to the elements of each claim.”)
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`This is particularly so where, as here, the asserted patents do not—and could not—cover
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`the basic concept of encrypted communication, which long predates the patents. See e.g., ’946
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`patent at 2:3–11 (discussing “conventional encryption systems” that predate the alleged invention).
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`Instead, the patents purport to provide specific implementations of encrypted communication.
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`Claim 1 of the ’946 patent is representative and recites:
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`A method comprising:
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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 15 of 23
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`downloading, by a client computing device, an encrypted data
`block from a server,
`wherein the encrypted data block includes a server-stored
`symmetric key; and
`decrypting, by the client computing device, the encrypted data
`block with a previously stored symmetric key that is stored
`locally to retrieve the server-stored symmetric key from the
`encrypted data block,
`generating a new shared-symmetric key;
`creating a new encrypted data block comprising the new shared-
`symmetric key and
`transmitting the new encrypted data block to the server;
`. . . .
`wherein the server decrypts the new encrypted data block and
`overwrites the server-stored symmetric key with the new
`shared-symmetric key
`Citing only generic language regarding encryption (or to large sections of cryptographic
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`text) does nothing to tie the accused products to the particular methods claimed by the Asserted
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`Patents. Instead, Cyph simply points to anything encryption-related and asserts, without more,
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`that this supports its infringement claim. This shotgun approach is improper because it fails to put
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`Zoom on notice of what Cyph actually accuses of infringement.
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`4.
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`Cyph Fails to Allege that Zoom Itself Practices the Asserted Method
`Claims
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`All of the claims Cyph identifies in its Complaint and accompanying charts are method
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`claims. Direct infringement of a method claim occurs where all steps of a claimed method are
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`performed by or attributable to a single entity.” Akamai Techs., Inc. v. Limelight Networks, Inc.,
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`797 F.3d 1020, 1022 (Fed. Cir. 2015) (en banc). Cyph does not allege that Zoom itself performs
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`all steps of any of the asserted method claims. Rather, it asserts that certain steps of these processes
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`are carried out by Zoom’s end-users—and does not claim, much less plead supporting facts, that
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`the actions of Zoom’s customers are attributable to Zoom. Under Akamai, this fails to state a claim
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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 16 of 23
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`for direct infringement against Zoom, and Cyph’s direct infringement claims should therefore be
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`dismissed.
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`The claims of the Asserted Patents are drafted so that only an actual participant in a
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`communication session could perform certain steps of the claimed method. The ’625 patent, for
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`instance, requires that “each user encrypt[] a message to the group of users.” ’625 patent, claim 1
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`(emphasis added). Cyph’s own allegations acknowledge this, asserting that “each user of Zoom
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`Products encrypts a message to the group of users…” ECF No. 1-7 at 2 (emphasis added). The
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`same is also true for each of the other Asserted Patents:
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`•
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`’047 patent, claim 1: “…each user encrypts a message to the group of users…”;
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`o Claim chart (ECF No. 1-8): “each user of Zoom Products encrypts a
`message to the group of users…”
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`•
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`’946 patent, claim 1: “downloading, by a client computing device, an encrypted
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`data block from a server”
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`o Claim chart (ECF No. 1-9): “All Zoom Products users receive encrypted
`communications and contents by downloading an encrypted data block
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`from a Zoom server”
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`•
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`’070 patent, claim 1: “transmitting, by the first user, the unique ephemeral
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`communication session identifier to the second user”
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`o Claim chart (ECF No. 1-10): “transmitting, by the first user, the unique
`ephemeral communication session identifier to the second user”
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`•
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`’465 patent, claim 1: “each communicating party encrypts the authentication
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`information . . .”
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`11
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`Case 1:21-cv-03027-RM-MEH Document 19 Filed 12/27/21 USDC Colorado Page 17 of 23
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`o Claim chart (ECF No. 1-11): “Each communicating member encrypts the
`authentication information . . .”
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`•
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`’369 patent, claim 1: “storing, by the client