Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 1 of 26 PageID #: 289
`
`KONINKLIJKE PHILIPS N.V. and
`PHILIPS NORTH AMERICA LLC,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 20-1243 (CFC)
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`
`
`Defendant.
`
`Plaintiffs,
`
`v.
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`
`INTEL CORP.,
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`
`
`
`
`
`
`
`INTEL’S OPENING BRIEF IN SUPPORT OF ITS MOTION TO DISMISS
`PHILIPS’ CLAIMS OF INDIRECT INFRINGEMENT
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`OF COUNSEL:
`
`Jack B. Blumenfeld (#1014)
`Chad S. Campbell
`Jennifer Ying (#5550)
`PERKINS COIE LLP
`1201 North Market Street
`P.O. Box 1347
`2901 N. Central Avenue, Suite 2000
`Wilmington, DE 19899
`Phoenix, AZ 85012-2788
`(302) 658-9200
`(602) 351-8000
`jblumenfeld@morrisnichols.com
`
`jying@morrisnichols.com
`Ryan J. McBrayer
`
`Christina J. McCullough
`Attorneys for Defendant Intel Corp.
`James S. Miller
`PERKINS COIE LLP
`1201 Third Avenue, Suite 4900
`Seattle, WA 98101-3099
`(206) 359-8000
`
`Sarah E. Piepmeier
`PERKINS COIE LLP
`505 Howard Street, Suite 1000
`San Francisco, CA 94105-3204
`(415) 344-7000
`
`
`

`

`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 2 of 26 PageID #: 290
`
`Kourtney Mueller Merrill
`PERKINS COIE LLP
`1900 Sixteenth Street, Suite 1400
`Denver, CO 80202-5255
`(302) 291-2300
`
`July 22, 2022
`
`

`

`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 3 of 26 PageID #: 291
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`
`
`TABLE OF CONTENTS
`
`Page
`NATURE AND STATE OF THE PROCEEDINGS ..................................... 1 
`I. 
`SUMMARY OF ARGUMENT ...................................................................... 2 
`II. 
`III.  STATEMENT OF FACTS ............................................................................. 3 
`A. 
`The filing of this action ........................................................................ 3 
`B. 
`Philips’ indirect infringement allegations ............................................ 4 
`C. 
`The 1224 ITC Investigation ................................................................. 5 
`D. 
`The ’809 and ’186 patents .................................................................... 7 
`IV.  ARGUMENT ................................................................................................ 10 
`Philips’ Complaint fails to state a plausible claim for
`A. 
`either induced or contributory infringement ...................................... 11 
`The ITC’s noninfringement determination renders
`implausible the allegation that Intel believes it is
`inducing or contributing to its customer’s alleged
`infringement ....................................................................................... 13 
`Philips’ indirect infringement claims should be dismissed
`without leave to amend ...................................................................... 16 
`CONCLUSION ............................................................................................. 18 
`
`B. 
`
`C. 
`
`V. 
`
`
`-i-
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`

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`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 4 of 26 PageID #: 292
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`
`
`TABLE OF AUTHORITIES
`Cases ................................................................................................................................. Page(s)
`AgroFresh Inc. v. Essentiv LLC,
`C.A. No. 16-662, 2019 WL 350620 (D. Del. Jan. 29, 2019) ....................... 11, 13
`Aro Mfg. Co. v. Convertible Top Replacement Co.,
`377 U.S. 476 (1964) ............................................................................................ 11
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ................................................................................ 10, 11, 15
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ............................................................................................ 10
`Commil USA, LLC v. Cisco Sys., Inc.,
`135 S. Ct. 1920 (2015) ........................................................................................ 11
`Cornell Univ. v. Illumina, Inc.,
`No. CV 10-433-LPS-MPT, 2017 WL 89165 (D. Del. Jan. 10,
`2017) ................................................................................................................... 17
`Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc.,
`C.A. No. 18-098, 2018 WL 6629709 (D. Del. Dec. 19, 2018) .................... 10, 13
`Dynamic Data Techs., LLC v. Brightcove Inc.,
`2020 WL 4192613 (D. Del. July 21, 2020) ........................................................ 12
`
`E.I. Du Pont De Nemours & Co. v. Heraeus Precious Metals N. Am.
`Conshohocken LLC,
`No. CV 11-773-SLR, 2013 WL 4047648 (D. Del. Aug. 8, 2013) ..................... 17
`Enzo Life Scis., Inc. v. Digene Corp.,
`270 F. Supp. 2d 484 (D. Del. 2003) .................................................................... 16
`Express Mobile, Inc. v. Squarespace, Incl,
`C.A. No. 20-1163-RGA, 2021 WL 3772040 (D. Del. Aug. 25,
`2021) ................................................................................................................... 12
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) ............................................................................................ 11
`
`-ii-
`
`

`

`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 5 of 26 PageID #: 293
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Hoai Dang v. Samsung Elecs. Co.,
`No. 14-CV-00530-LHK, 2018 WL 6308738 (N.D. Cal. Dec. 3,
`2018), aff'd sub nom. Dang v. Samsung Elecs. Co., Ltd, 803 F.
`App'x 137 (9th Cir. 2020) ................................................................................... 14
`IPtronics Inc. v. Avago Techs. U.S., Inc.,
`No. 14-CV-05647-BLF, 2015 WL 5029282 (N.D. Cal. Aug. 25,
`2015) ................................................................................................................... 14
`Koloni Reklam, Sanayi, Ticaret LTD/STI v. Viacom, Inc.,
`No. CV 16-285-SLR, 2017 WL 726660 (D. Del. Feb. 23, 2017) ...................... 14
`TriPlay, Inc. v. WhatsApp Inc.,
`C.A. No. 13-1703, 2018 WL 1479027 (D. Del. Mar. 27, 2018) ........................ 11
`Wilkerson v. New Media Tech. Charter Sch. Inc.,
`522 F.3d 315 (3d Cir. 2008) ............................................................................... 11
`ZapFraud, Inc. v. Barracuda Networks, Inc.,
`528 F. Supp. 3d 247 (D. Del. 2021) ........................................................ 11, 12, 17
`Statutes
`28 U.S.C. § 1659 ........................................................................................................ 1
`Rules
`Fed. R. Civ. P. 12(b)(6) .................................................................................. 2, 16, 17
`
`-iii-
`
`

`

`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 6 of 26 PageID #: 294
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`
`
`I.
`
`NATURE AND STATE OF THE PROCEEDINGS
`Koninklijke Philips N.V. and Philips North America LLC (“Philips”) filed
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`this patent infringement lawsuit against Intel Corporation (“Intel”) on September 17,
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`2020. The next day Philips also filed a complaint with the U.S. International Trade
`
`Commission (“ITC”), naming as respondents Intel, its customers, and others, and
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`which the ITC instituted as the 1224 Investigation. Miller Decl., Ex. A (Complaint
`
`in 337-TA-1224, EDIS Doc. No. 720008). The Court stayed this case pending ITC
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`resolution as required by 28 U.S.C. § 1659, because Philips asserted the same
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`infringement claims here and in the 1224 Investigation.1 D.I. 9. In a March 23,
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`2022, opinion, the Commission found that Intel processors and Intel-based
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`computers do not infringe and terminated the 1224 Investigation. Miller Decl., Ex.
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`B (Commission Op., EDIS Doc. No. 769212).
`
`In view of the Commission’s noninfringement findings, Intel now moves to
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`dismiss Philips’ induced and contributory infringement claims from this case for
`
`
`1 The Court also stayed six other suits that Philips filed in this district against other
`respondents named in the ITC investigation. Koninklijke Philips N.V. et al v. Dell
`Technologies, Inc. et al, No. 1:20-cv-01240-CFC, D.I. 9 (July 26, 2021); Koninklijke
`Philips N.V. et al v. HP Inc., No. 1:20-cv-01241-CFC, D.I. 14 (July 26, 2021);
`Koninklijke Philips N.V. et al v. Lenovo Group Ltd. Et al, No. 1:20-cv-01242-CFC,
`D.I. 14 (July 26, 2021); Koninklijke Philips N.V. et al v. MediaTek Inc. et al, No.
`1:20-cv-01246-CFC, D.I. 9 (July 26, 2021); Koninklijke Philips N.V. et al v. Realtek
`Semiconductor Corp., No. 1:20-cv-01247-CFC, D.I. 16 (July 26, 2021).
`
`-1-
`
`

`

`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 7 of 26 PageID #: 295
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`
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`failure to state a claim under Fed. R. Civ. P. 12(b)(6) and to deny leave to amend the
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`Complaint as futile.
`
`II.
`
`SUMMARY OF ARGUMENT
`Philips’ claims for indirect infringement (both induced and contributory)
`
`should be dismissed for failure to state a claim that is facially plausible. Philips’
`
`Complaint fails to allege facts sufficient to support a reasonable inference that Intel
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`subjectively knows that its processors and firmware have no substantial
`
`noninfringing use and that it induces customers to make computers that actually
`
`infringe the asserted patents for at least two independent reasons. Without such
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`intent, Intel cannot be indirectly liable for the purported infringement of its
`
`customers’ computers.
`
`First, the Complaint alleges that Intel has actual notice of the alleged
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`infringement based on the filing of the Complaint and a letter Philips sent to Intel
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`the same day. Courts in this district have repeatedly held that such truncated notice
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`cannot provide a plausible basis for alleging the required knowledge and particular
`
`intent required for indirect patent infringement. Nor do the Complaint’s other
`
`allegations make up the difference. Philips alleges that Intel advertises the accused
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`features of its products and provides instructions to customers about how to use the
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`features. But when it comes to facts supporting an inference that Intel actually
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`intends and knows that its products have no noninfringing uses and are inducing
`
`-2-
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`

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`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 8 of 26 PageID #: 296
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`
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`Intel’s customers to infringe, the Complaint merely parrots the elements of the Patent
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`Act and summarily concludes that Intel possesses the required intent without
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`alluding to any facts that would reasonably justify such an inference. It is settled
`
`law that allegations of that sort are inadequate to withstand a motion to dismiss.
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`Second, Philips’ knowledge and intent allegations also are implausible for a
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`more fundamental and unavoidable reason. When assessing facial plausibility of
`
`complaint allegations, context matters. And the context here is that the ITC—after
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`full fact and expert discovery, a week-long evidentiary hearing, and voluminous
`
`briefing—ruled that all of Intel’s noninfringement defenses are correct. Philips
`
`cannot allege any facts that plausibly suggest Intel actually believes the Commission
`
`was wrong and the accused Intel processors or Intel customer computers infringe.
`
`Given that any attempted amendment would be futile, the indirect infringement
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`claims against Intel should be dismissed without leave to amend.
`
`III. STATEMENT OF FACTS
`A. The filing of this action
`Philips filed its district court Complaint against Intel on September 17, 2020,
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`asserting two related patents directed to secure authenticated distance measurement
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`between transmitting and receiving devices—U.S. Patent Nos. 9,436,809 and
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`10,091,186 (the “’809 and ’186 patents”). D.I. 1. The Complaint identifies as
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`“Accused Products” “digital video-capable devices, integrated circuits, and
`
`-3-
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`

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`
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`associated firmware designed to facilitate digital video-capable playback supporting
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`the HDCP 2.0 protocol and above.” D.I. 1, ¶ 18. The listed examples include laptop,
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`desktop, and server devices that incorporate Intel’s 6th, 7th, 8th, 9th, and 10th
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`Generation Processors and firmware associated with those processors. Id., ¶¶ 14,
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`18.
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`“HDCP” refers to the High-bandwidth Digital Content Protection protocol, a
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`form of digital copy protection developed by Intel and widely licensed to makers of
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`computers, streaming devices, monitors, TVs, and related equipment. See
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`https://www.digital-cp.com/.
`
`B.
`Philips’ indirect infringement allegations
`Philips’ Complaint alleges that Intel received “actual notice” of the ’809 and
`
`’186 patents “by way of a letter to Defendant dated September 17, 2020”—the same
`
`date Philips filed the Complaint—and through “the filing of this Complaint.” D.I.
`
`1, ¶ 16. The Complaint then alleges that Intel induced and materially contributed to
`
`its customers’ alleged infringement by “advertis[ing] its digital video-capable
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`integrated circuits and associated firmware for use within digital video-capable
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`devices such as laptops and desktops,” including advertising that the integrated
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`circuits and firmware provide “HDCP 2.2 support,” and providing unspecified user
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`instructions about how to use the accused Intel processors and firmware. D.I. 1, ¶
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`21. The Complaint also concludes (without explaining why or how) that Intel “had
`
`-4-
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`

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`
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`knowledge that the digital video-capable integrated circuits and associated firmware
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`were especially made or especially adapted for use in an infringement of the Asserted
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`Patents by practicing the HDCP 2.0 protocol or above.” D.I. 1, ¶ 22.
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`The Complaint’s two counts are directed to the ’809 patent and ’186 patent,
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`respectively. D.I. 1, ¶¶ 25-34, 35-44. Both counts allege that Intel provided
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`unspecified instructions, user guides, and other documentation about the use and
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`operation of the Accused Products. D.I. ¶¶ 31, 41. The counts also incorporate claim
`
`charts at Exhibits C and D to the Complaint, which refer to exemplary Dell laptop
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`computers containing Intel processors and firmware capable of supporting HDCP
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`2.2 transmission. D.I. 1, Exhs. C & D. The charts cite to various sections of the
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`HDCP 2.2 specification but do not identify any facts other than the letter Philips sent
`
`concurrently with the Complaint as a source of Intel’s purported pre-suit knowledge
`
`of induced or contributory infringement. Id.
`
`C. The 1224 ITC Investigation
`Philips filed its ITC complaint naming Intel and others as respondents on
`
`September 18, 2020. Miller Decl., Ex. A. As in this action, the ITC complaint
`
`asserted the ’809 and ’186 patents against Intel’s processors and associated firmware
`
`and the Dell, Lenovo, and HP computers that incorporate those processors and
`
`firmware and that support HDCP 2.0 and higher protocol transmissions. Id. at ¶¶
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`61, 106. Philips’ infringement theory alleged that Intel induced and contributed to
`
`-5-
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`

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`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 11 of 26 PageID #: 299
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`
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`customers’ infringement by furnishing processors and firmware for HDCP-capable
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`laptop computers sold by Dell, HP, and Lenovo. Id. at ¶¶ 92-95.
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`After fact and expert discovery concluded, Philips dropped the ’809 patent
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`and subsequently tried the case to the Administrative Law Judge (“ALJ”) over five
`
`days of live testimony and exhibits, which concluded with more than 800 pages of
`
`briefing. The ALJ’s Initial Determination found that for commercially released
`
`products, the accused HDCP 2.0 and higher-capable Dell, HP, and Lenovo laptop
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`computers that incorporate Intel processors and firmware do not satisfy the asserted
`
`claims of the ’186 patent and thus Intel has not infringed directly or indirectly.
`
`Miller Decl., Ex. D at 52-55 (Initial Determination, 337-TA-1224, EDIS No.
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`758903). The ALJ adopted one of two noninfringement defenses presented by Intel.2
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`Id. at 45. The ALJ further found that Philips had failed to prove indirect
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`infringement because it only provided perfunctory evidence of knowledge of the
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`patents occurring on the same day as the filing of the investigation, presented no
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`evidence as to whether Intel understood its action infringed or that “Intel specifically
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`intended that its customers infringe a claim of the ’186 patent,” and provided no
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`evidence that the Intel processors have no noninfringing uses. Miller Decl., Ex. D
`
`
`2 The ALJ initially found that a non- released version of Intel’s driver software
`infringed, but the Commission reversed that finding and adopted all of Intel’s
`noninfringement defenses for all Intel and customer accused products. See Miller
`Decl., Ex. D at 52-53; Ex. B at 14-25, 34-40.
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`-6-
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`

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`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 12 of 26 PageID #: 300
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`
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`at 54-55; Miller Decl., Ex. B at 9-10. After reviewing the record and further briefing
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`by Philips and respondents, the full Commission concluded that none of the accused
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`Intel processors or customer computers infringe, expressly adopted all of Intel’s
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`noninfringement defenses, and terminated the investigation. Miller Decl., Ex. B at
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`14-25, 34-40.
`
`D. The ’809 and ’186 patents
`The ’809 and ’186 patents are closely related. Both share the same written
`
`description and figures, and, on its face, the ’186 patent claims priority through the
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`’809 patent to a common original application. Miller Decl., Ex. E at 1-2 (the ’186
`
`patent).
`
`The basic concept is depicted in patent Figure 1 (annotated below). Ex. E at
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`5. A computer with protected content to transmit is shown in the center of a circle,
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`which represents the maximum distance from the transmitting computer that a
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`receiving computer may be and still be allowed
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`to receive the protected content. Computers
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`inside the circle (green) are allowed to receive
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`the protected content, while computers outside
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`the circle (pink) are too far away for access. To
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`implement this arrangement, the patents present
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`a
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`two part
`
`approach.
`
` First, during
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`-7-
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`
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`authentication, the transmitting computer receives a digital certificate from the
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`receiving device where the certificate indicates or includes information that can be
`
`used to determine whether the receiving device is compliant with compliance rules.
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`Miller Decl., Ex. E at 2:43-49, 3:60-65; Miller Decl., Ex. F at 2:38-44, 3:56-61 (the
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`’809 patent). If so, the transmitting computer uses the time between sending a first
`
`signal and receiving a responsive signal back from the receiving device to measure
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`the distance. Miller Decl., Ex. E at 2:61-3:19, 4:36-48, 5:39-50; Ex. F at 2:56-3:14,
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`4:32-44, 5:36-47.
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`The claims of the ’186 and ’809 patents are highly similar, and all require that
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`the transmitting computer is arranged (i) to receive a certificate that indicates or
`
`includes information for determining whether the receiving device is compliant with
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`compliance rules (highlighted in yellow). Compare Miller Decl., Ex. E at 7:11-20;
`
`Ex. F at 7:13-15. The claims further require that the transmitter be arranged (ii) to
`
`compare the round trip time of first and second signals exchanged between the
`
`devices to ensure that the elapsed time does not exceed a predetermined time
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`(highlighted in green). Miller Decl., Ex. E at 7:16-20; Ex. F at 7:23-25.
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`-8-
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`

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`
`
`’186 Patent Claim 1
`1. A first device for controlling delivery
`of protected content to a second device,
`the first device comprising a processor
`circuit, the processor circuit arranged to
`execute instructions, the instructions
`arranged to:
`receive a second device certificate
`from the second device prior to
`sending a first signal;
`provide the first signal to the second
`device when the second device
`certificate indicates that the second
`device is compliant with at least one
`compliance rule;
`receive a second signal from the
`second device after providing the
`first signal; and
`provide the protected content to the
`second device when the second
`signal is derived from a secret and a
`time between the providing of the
`first signal and the receiving of the
`second signal is less than a
`predetermined time,
`wherein the secret is known by the
`first device.
`
`
`
`’809 Patent Claim 1
`1. A first device for controlling
`delivery of protected content to a
`second device, the first device
`comprising:
`a memory;
`a processor, said processor arranged
`to:
`receive a certificate of the second
`device, the certificate providing
`information regarding the second
`device;
`determine whether the second device
`is compliant with a set of
`compliance rules utilizing said
`information provided in said
`certificate;
`provide a first signal to the second
`device depending when the second
`device is determined to be compliant
`with the set of compliance rules;
`receive a second signal from the
`second device after providing the
`first signal;
`determine whether the second signal
`is derived from a secret known by
`the first device;
`determine whether a time difference
`between providing the first signal
`and receiving the second signal is
`less than a predetermined time; and
`allow the protected content to be
`provided to the second device when
`at least the second signal is
`determined to be derived from the
`secret and the time difference is less
`than the predetermined time.
`
`
`
`-9-
`
`

`

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`
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`In the 1224 Investigation, the Commission agreed with Intel that the digital
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`certificates used in HDCP 2.0 and higher transmissions include a public encryption
`
`key and a serial number, but lack information or an indication of whether the
`
`receiving device does or does not obey one or more compliance rules. Miller Decl.,
`
`Ex. B at 17-25. The Commission further agreed with Intel that the accused Intel-
`
`based products are not arranged to measure the round trip time when first and second
`
`signals are exchanged or to compare such elapsed time to a predetermined time. Id.
`
`at 33-40. For both reasons, the Commission concluded that the Intel and customer
`
`accused products do not infringe. Id. at 2, 41.
`
`IV. ARGUMENT
`To plead a claim for patent infringement, Philips’ complaint must contain
`
`“sufficient factual matter, accepted as true, to state a claim to relief that is plausible
`
`on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and
`
`citation omitted). This requires more than “labels and conclusions, and a formulaic
`
`recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S.
`
`544, 555 (2007); Dodots Licensing Sols. LLC v. Lenovo Holding Co., Inc., C.A. No.
`
`18-098, 2018 WL 6629709, at *1 (D. Del. Dec. 19, 2018) (holding that it is improper
`
`to accept as true “bald assertions, unsupported conclusions or unwarranted
`
`inferences”). Of particular relevance here, allegations that “simply parrot the
`
`statutory language” fail to state a plausible claim of indirect infringement.
`
`-10-
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`

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`
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`AgroFresh Inc. v. Essentiv LLC, C.A. No. 16-662, 2019 WL 350620, at *5 (D. Del.
`
`Jan. 29, 2019). Rather, “‘the complaint must state enough facts to raise a reasonable
`
`expectation that discovery will reveal evidence of each necessary element’ of a
`
`plaintiff’s claim.” TriPlay, Inc. v. WhatsApp Inc., C.A. No. 13-1703, 2018 WL
`
`1479027, at *3 (D. Del. Mar. 27, 2018) (quoting Wilkerson v. New Media Tech.
`
`Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008)). Assessing plausibility is “a
`
`context-specific task that requires the reviewing court to draw on its judicial
`
`experience and common sense.” Iqbal, 556 U.S. at 679.
`
`A.
`
`Philips’ Complaint fails to state a plausible claim for either
`induced or contributory infringement
`“Claims of
`indirect
`infringement—that
`is,
`
`induced or contributory
`
`infringement—require proof that the defendant’s conduct occurred after the
`
`defendant (1) knew of the existence of the asserted patent and (2) knew that a third
`
`party’s acts constituted infringement of the patent.” ZapFraud, Inc. v. Barracuda
`
`Networks, Inc., 528 F. Supp. 3d 247, 249 (D. Del. 2021) (citing Commil USA, LLC
`
`v. Cisco Sys., Inc., 135 S. Ct. 1920, 1926 (2015); Global-Tech Appliances, Inc. v.
`
`SEB S.A., 563 U.S. 754, 766, (2011); and Aro Mfg. Co. v. Convertible Top
`
`Replacement Co., 377 U.S. 476, 488 (1964)). Philips’ Complaint does not allege
`
`any facts that plausibly support an inference that before the Complaint, Intel had
`
`actual knowledge of Philips’ infringement claims.. Nor do Philips’ allegations
`
`plausibly support an inference that Intel knew that its customers infringe the ’809 or
`
`-11-
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`

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`
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`’186 patents by using accused Intel processors and firmware to make computers
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`capable of HDCP 2.0 or higher transmission.
`
`Philips’ Complaint and contemporaneous notice letter cannot serve as a
`
`plausible basis to infer that Intel knew of the asserted patents and that its customers
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`purportedly infringe by using accused Intel processors and firmware in their
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`computers. See ZapFraud, Inc., 528 F. Supp. 3d at 250, 252; Dynamic Data Techs.,
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`LLC v. Brightcove Inc., 2020 WL 4192613, at *3 (D. Del. July 21, 2020) (dismissing
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`induced infringement claims where requisite knowledge of infringement was
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`purportedly provided by the complaint); Express Mobile, Inc. v. Squarespace, Incl,
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`C.A. No. 20-1163-RGA, 2021 WL 3772040 (D. Del. Aug. 25, 2021) (letter sent one
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`day before the complaint could not plausibly support indirect infringement claims).
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`The remaining Complaint allegations likewise do not recite facts that
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`plausibly suggest that Intel knew its customers allegedly infringe or that the accused
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`Intel products are somehow specially adapted to infringe. Philips alleges that Intel
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`advertises its processors and firmware for use in laptops and desktops that support
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`HDCP 2.2; that Intel furnishes user guides and instructions about how to incorporate
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`its processors and firmware into accused computers; and that Intel knows
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`“Exemplary Customers” Dell, HP, and Lenovo do in fact incorporate Intel
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`processors with HDCP support in their computer products. D.I. 1, ¶¶ 19-23, 39-42.
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`But such alleged facts say nothing about Intel actually knowing that its customers
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`-12-
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`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 18 of 26 PageID #: 306
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`
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`were infringing or that its processors and firmware have no noninfringing uses.
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`Philips cannot state a claim by merely parroting the intent elements of induced or
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`contributory infringement. See AgroFresh Inc. v. Essentiv LLC, C.A. No. 16-662,
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`2019 WL 350620, at *5 (D. Del. Jan. 29, 2019) (allegations tracking statutory
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`language were insufficient for contributory infringement claim given no pleaded
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`facts would “allow an inference that the components sold or offered for sale have no
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`substantial non-infringing uses”); Dodots Licensing Sols. LLC v. Lenovo Holding
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`Co., Inc., C.A. No. 18-098, 2018 WL 6629709, at *1 (D. Del. Dec. 19, 2018)
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`(generic references to “marketing materials, brochures, product manuals, and
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`[Defendants’] website could not support inducement claim because they do not
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`“plausibly suggest[] Defendants intend to induce infringement of the Patents-in-
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`Suit”).
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`Because Philips’ Complaint has alleged no plausible basis to infer either the
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`actual knowledge or the specific intent that Intel must have for induced or
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`contributory infringement, the indirect infringement claims should be dismissed.
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`B.
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`The ITC’s noninfringement determination renders implausible
`the allegation that Intel believes it is inducing or contributing to
`its customer’s alleged infringement
`In the ITC, Philips raised the same direct and indirect infringement claims
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`against Intel under the same ’809 and ’186 patents targeting the same Intel
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`processors, firmware, and customer computers that Philips has advanced in the
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`-13-
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`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 19 of 26 PageID #: 307
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`
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`Complaint here. See Miller Decl., Ex. A, ¶¶ 14, 18. After many months of fact and
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`expert discovery of the technical evidence underlying Intel’s noninfringement
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`defenses, a full week of live testimony and exhibits, and 800 pages of briefing, the
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`Commission agreed with and adopted Intel’s defenses and determined that Intel’s
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`products and its customers’ computers with support for HDCP 2.0 and higher do not
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`infringe the ’186 patent. Miller Decl., Ex. B at 14-25, 34-40.
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`Intel does not argue that the Commission opinion alone precludes Philips’
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`claims. Indeed, the Federal Circuit has held that ITC decisions have no collateral
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`estoppel effects in district court. But the Commission’s opinion is now a fact in the
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`public record, subject to judicial notice, and proper context for the Court to consider
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`in deciding this motion at the pleading stage. See Koloni Reklam, Sanayi, Ticaret
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`LTD/STI v. Viacom, Inc., No. CV 16-285-SLR, 2017 WL 726660, at *1 (D. Del.
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`Feb. 23, 2017) (“The court may take judicial notice of matters of public record”;
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`granting motion to dismiss); Hoai Dang v. Samsung Elecs. Co., No. 14-CV-00530-
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`LHK, 2018 WL 6308738, at *9 (N.D. Cal. Dec. 3, 2018), aff'd sub nom. Dang v.
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`Samsung Elecs. Co., Ltd, 803 F. App'x 137 (9th Cir. 2020) (“At the motion to dismiss
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`stage, the Court may take judicial notice of public records, including records from
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`judicial proceedings . . . Thus, the Court takes judicial notice of the ITC orders.”);
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`IPtronics Inc. v. Avago Techs. U.S., Inc., No. 14-CV-05647-BLF, 2015 WL
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`5029282, at *1 (N.D. Cal. Aug. 25, 2015) (granting requests for judicial notice of
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`-14-
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`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 20 of 26 PageID #: 308
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`documents from the record of an ITC proceeding in deciding a motion to dismiss).
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`The opinion provides context within which to assess the plausibility of Philip’s
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`allegation that despite Intel’s vindication at the ITC, Intel somehow believes it is
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`inducing infringement with processors and firmware that have no substantial
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`noninfringing uses. Iqbal, 556 at 679 (“Determining whether a complaint states a
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`plausible claim for relief [is] a context-specific task that requires the reviewing court
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`to draw on its judicial experience and common sense.”) (emphasis supplied). Intel
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`presented the Commission and Philips with its specific reasons for believing that its
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`processors and firmware and its customers’ computers do not infringe, and the
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`Commission agreed with and adopted those reasons. Philips has alleged no facts
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`suggesting that Intel actually believes the Commission was mistaken when it
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`adopted Intel’s noninfringement evidence and ruled in Intel’s favor. Common sense
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`makes such an inference implausible.
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`Although Philips dropped the ’809 patent after fact and expert discovery and
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`a few weeks before the ITC evidentiary hearing,3 the Commission’s adoption of
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`Intel’s noninfringement defenses renders implausible the allegations aimed at the
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`’809 patent as well. Intel presented proof to the Commission, and the Commission
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`agreed with Intel, that the digital certificates used in HDCP 2.0 and higher
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`3 See Miller Decl., Ex. C (Complainants’ Motion for Partial Termination of the
`Investigation, 337-TA-1224, EDIS No. 746001).
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`-15-
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`Case 1:20-cv-01243-CFC Document 15 Filed 07/22/22 Page 21 of 26 PageID #: 309
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`transmission scenarios do not indicate that the receiving device complies with at
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`least one compliance rule, as the ’186 patent’s claims require. The certificate
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`limitation of the ’809 patent claims is not meaningfully different in this regard: like
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`the ’186 patent, the ’809 patent requires a certificate with information used to
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`determine whether the receiving device is compliant with a set of compliance rules.
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`Given the Commission’s adoption of Intel’s certificate-based defense, it is
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`implausible to allege that Intel believes its products or its customer’s computers are
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`arranged to use certificates as the ’809 patent claims.
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`The same holds for Intel’s second noninfringement defense. Intel proved and
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`the Commission agreed with Intel that computers using Intel processors and
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`firmware do not m