Case 1:23-cv-00758-GBW Document 12 Filed 09/01/23 Page 1 of 26 PageID #: 163
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`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
`
`
`ORCA SECURITY LTD.,
`Plaintiff,
`
`v.
`
`WIZ, INC.
`
`Defendant.
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`
`
`C.A. No. 23-00758-GBW
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`DEFENDANT’S OPENING BRIEF IN SUPPORT OF ITS
`MOTION TO DISMISS CLAIMS OF INDIRECT AND WILLFUL INFRINGEMENT
`
`
`OF COUNSEL:
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`Jordan R. Jaffe
`Catherine Lacey
`Callie Davidson
`Alex Miller
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`(415) 947-2000
`
`
`Dated: September 1, 2023
`
`
`RICHARDS, LAYTON & FINGER, P.A.
`Frederick L. Cottrell, III (#2555)
`Kelly E. Farnan (#4395)
`Christine D. Haynes (#4697)
`One Rodney Square
`920 N. King Street
`Wilmington, DE 19801
`(302) 658-6541
`cottrell@rlf.com
`farnan@rlf.com
`haynes@rlf.com
`
`Counsel for Defendant Wiz, Inc.
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`

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`Case 1:23-cv-00758-GBW Document 12 Filed 09/01/23 Page 2 of 26 PageID #: 164
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`
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`I.
`II.
`III.
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`IV.
`V.
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`VI.
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`
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`TABLE OF CONTENTS
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`Page
`
`NATURE AND STAGE OF PROCEEDINGS .................................................................. 1
`SUMMARY OF ARGUMENT .......................................................................................... 1
`STATEMENT OF FACTS ................................................................................................. 3
`A. Wiz is a Leading Cybersecurity Company. ............................................................ 3
`B.
`The Asserted Patents. .............................................................................................. 3
`C.
`Defendant’s Alleged Knowledge of the Asserted Patents and Allegations
`Regarding Indirect and Willful Infringement. ........................................................ 4
`
`Plaintiff’s Allegations of “Copying” Before the Asserted Patents Issued .............. 5
`D.
`LEGAL STANDARD ......................................................................................................... 7
`ARGUMENT ...................................................................................................................... 7
`A.
`Orca Fails to Plausibly Allege Knowledge of the Asserted Patents or Any
`Purported Infringement Prior to their Issuance or the Filing of the
`Complaint. ............................................................................................................... 7
`
`(1) Wiz’s Prosecution Counsel’s Knowledge of Related Patent
`Applications is Insufficient ......................................................................... 8
`(2) Wiz’s Allegedly Tiny Amount of Overlapping Boilerplate Patent
`Disclosure Does Not Show Knowledge. ................................................... 10
`
`(3)
`
`Orca’s Unrelated Pre-Issuance “Copying” Allegations Do Not
`Show Knowledge. ..................................................................................... 12
`
`Orca Fails to Allege Wiz’s Knowledge of the Purported Infringement of
`the Asserted Patents. ............................................................................................. 15
`
`Orca Cannot Allege Willfulness or Indirect Infringement Based on the
`Filing of the Complaint. ........................................................................................ 17
`
`Orca Fails to Offer Plausible Allegations Supporting the Other Elements
`of Its Indirect Infringement Claims....................................................................... 18
`
`B.
`
`C.
`
`D.
`
`Induced Infringement. ............................................................................... 18
`(1)
`Contributory Infringement. ....................................................................... 20
`(2)
`CONCLUSION ................................................................................................................. 20
`
`i
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`Case 1:23-cv-00758-GBW Document 12 Filed 09/01/23 Page 3 of 26 PageID #: 165
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`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .........................................................................................................2, 7
`Bayer Healthcare LLC v. Baxalta Inc.,
`989 F.3d 964 (Fed. Cir. 2021)..............................................................................7, 8, 16, 17
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................2, 7, 12
`BillJCo, LLC v. Apple Inc.,
`583 F. Supp. 3d 769 (W.D. Tex. 2022)..............................................................................15
`Boston Sci. Corp. v. Nevro Corp.,
`560 F. Supp. 3d 837 (D. Del. 2021) ...................................................................................18
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) .............................................................................................................7
`CyWee Grp. Ltd. v. HTC Corp.,
`312 F. Supp. 3d 974 (W.D. Wash. 2018) ...........................................................................20
`Deere & Co. v. AGCO Corp., No. 18-827,
`2019 WL 668492 (D. Del. Feb. 19, 2019) ...................................................................15, 16
`
`Dodots Licensing Sols. LLC v. Lenovo Holding Co., No. 18-098,
`2018 WL 6629709 (D. Del. Dec. 19, 2018).......................................................................19
`
`DSU Med. Corp. v. JMS Co., Ltd.,
`471 F.3d 1293 (Fed. Cir. 2006)....................................................................................18, 19
`Dynamic Data Technologies v. Google LLC, No. 19-1529,
`2020 WL 1285852 (D. Del. Mar. 18, 2020) ......................................................................16
`
`Dynamic Data Techs., LLC v. Brightcove Inc., No. 19-1190,
`2020 WL 4192613 (D. Del. July 21, 2020) .......................................................................18
`
`ESCO Grp. LLC v. Deere & Co., No. 20-1679,
`2023 WL 4199413 (D. Del. June 22, 2023) .......................................................................18
`
`Fluidigm Corp. v. IONpath, Inc., No. 19-05639,
`2020 WL 408988 (N.D. Cal. Jan. 24, 2020) ......................................................................16
`
`Fowler v. UPMC Shadyside,
`578 F.3d 203 (3d Cir. 2009).................................................................................................7
`
`
`
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`ii
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`

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`
`
`Fujitsu Ltd. v. Netgear Inc.,
`620 F.3d 1321 (Fed. Cir. 2010)..........................................................................................20
`Greatbatch Ltd. v. AVX Corp., No. 13-723,
`2016 WL 7217625 (D. Del. Dec. 13, 2016).................................................................15, 16
`
`Halo Electronics, Inc. v. Pulse Electronics, Inc.,
`579 U.S. 93 (2016) .............................................................................................................18
`Helios Streaming, LLC v. Vudu, Inc., No. 19-1792,
`2020 WL 2332045 (D. Del. May 11, 2020) .........................................................................8
`
`Helios Streaming, LLC v. Vudu, Inc., No. 19-1792,
`
`2020 WL 3167641 (D. Del. June 15, 2020) .........................................................................8
`Hutchins v. Zoll Med. Corp.,
`492 F.3d 1377 (Fed. Cir. 2007)..........................................................................................15
`In re Bill of Lading Transmission & Processing Sys. Patent Litig.,
`681 F.3d 1323 (Fed. Cir. 2012)..........................................................................................20
`In re Perle,
`725 F.3d 1023 (9th Cir. 2013) ...........................................................................................10
`Iron Oak Techs., LLC v. Dell, Inc., No. 17-cv-999,
`2018 WL 1631396 (W.D. Tex. Apr. 4, 2018) ....................................................................20
`
`Jackson v. Seaspine Holdings Corp., No. 20-1784,
`2022 WL 610703 (D. Del. Feb. 14, 2022) ...........................................................................9
`
`Kyowa Hakka Bio, Co. v. Ajinomoto Co., No. 17-313,
`2018 WL 834583 (D. Del. Feb. 12, 2018) .........................................................................15
`
`Maldonado v. Ramirez,
`757 F.2d 48 (3d. Cir.1985).................................................................................................10
`Masimo Corp. v. Philips Elecs. N. Am. Corp., No. 09-80,
`2014 WL 4652333 (D. Del. Sept. 12, 2014) ......................................................................14
`
`MasterObjects, Inc. v. Amazon.com, Inc., No. C 20-08103,
`2021 WL 4685306 (N.D. Cal. Oct. 7, 2021)............................................................8, 12, 16
`
`Maxell Ltd. v. Apple Inc., No. 19-CV-00036,
`2019 WL 7905455 (E.D. Tex. Oct. 23, 2019) .................................................................8, 9
`
`Olaf Sööt Design, LLC v. Daktronics Hoist, Inc.,
`325 F. Supp. 3d 456 (S.D.N.Y. 2018)................................................................................10
`Old Reliable Wholesale, Inc. v. Cornell Corp.,
`635 F.3d 539 (Fed. Cir. 2011)..............................................................................................2
`Parallel Networks Licensing, LLC v. IBM, No. 13- 2072,
`2017 U.S. Dist. LEXIS 28461 (D. Del. Feb. 22, 2017) ...............................................19, 20
`
`
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`iii
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`
`
`Pontiaki Special Maritime Enter. v. Taleveras Grp., No. 16-247,
`2016 WL 4497058 (D. Del. Aug. 26, 2016) ......................................................................17
`
`ReefEdge Networks, LLC v. Juniper Networks, Inc.,
`29 F. Supp. 3d 455 (D. Del. 2014) .....................................................................................10
`Schmidt v. Skolas,
`770 F.3d 241 (3d Cir. 2014).................................................................................................5
`Secured Mail Sols. LLC v. Universal Wilde, Inc.,
`873 F.3d 905 (Fed. Cir. 2017)..............................................................................................2
`Software Rsch., Inc. v. Dynatrace LLC,
`316 F. Supp. 3d 1112 (N.D. Cal. 2018) ...............................................................................9
`Sonos, Inc. v. Google LLC,
`591 F. Supp. 3d 638 (N.D. Cal. 2022) .................................................................................9
`State Indus., Inc. v. A.O. Smith Corp.,
`751 F.2d 1226 (Fed. Cir. 1985)....................................................................................12, 13
`Takeda Pharms. U.S.A., Inc. v. West-Ward Pharm. Corp.,
`785 F.3d 625 (Fed. Cir. 2015)............................................................................................19
`Välinge Innovation AB v. Halstead N. Eng. Corp., No. 16-1082,
`2018 WL 2411218 (D. Del. May 29, 2018) .......................................................................15
`
`Vasudevan Software, Inc. v. TIBCO Software Inc., No C 11-06638,
`2012 WL 1831543 (N.D. Cal. May 18, 2012) .....................................................................9
`
`VLSI Tech. LLC v. Intel Corp., No. 18-966,
`2019 WL 1349468 (D. Del. Mar. 26, 2019) ......................................................................18
`
`ZapFraud, Inc. v. Barracuda Networks, Inc.,
`528 F. Supp. 3d 247 (D. Del. 2021) .............................................................................17, 18
`STATUTES
`35 U.S.C. § 271(c) .........................................................................................................................20
`RULES
`Fed. R. Civ. P. 12(b)(6)....................................................................................................................1
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`iv
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`Case 1:23-cv-00758-GBW Document 12 Filed 09/01/23 Page 6 of 26 PageID #: 168
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`
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`I.
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`NATURE AND STAGE OF PROCEEDINGS
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`On July 12, 2023, Plaintiff Orca Ltd. (“Orca”) filed this lawsuit alleging that Wiz, Inc.
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`(“Wiz”) directly, indirectly, and willfully infringes U.S. Patent Nos. 11,663,031 (the “’031
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`patent” (D.I. 1-1, Ex. 1) and 11,663,032 (the “’032 patent”) (D.I. 1-1, Ex. 2) (collectively, the
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`“Asserted Patents”). In its complaint, Orca alleges that Wiz’s cybersecurity products, which
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`provide a constellation of tools and features for managing cloud security, infringe the Asserted
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`Patents. Pursuant to Fed. R. Civ. P. 12(b)(6), Wiz moves to dismiss Orca’s claims regarding
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`indirect and willful infringement.
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`II.
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`SUMMARY OF ARGUMENT
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`Orca’s lawsuit is the result of trying and failing to win business in the marketplace
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`against Wiz. Apparently left with no better options, Orca has resorted to meritless claims of
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`patent infringement. Among other allegations, the Complaint alleges that Wiz’s serving coffee
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`at a conference is alleged evidence of “copying” Orca’s patented technology. Orca has no
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`conceivable intellectual property rights in serving coffee, nor is it the first company to do so.
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`Orca’s resort to these types of allegations only shows the weakness of its claims.
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`Along the same lines, Orca alleges that Wiz “copied” its lawyers in support of its
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`allegations of indirect and willful infringement. See Compl., ¶ 22. More specifically, Orca
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`appears to claim that by hiring the same corporate and patent prosecution lawyers, Wiz
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`somehow “copied” Orca in a manner that is relevant to its claims. Such allegations make no
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`sense as lawyers serve multiple clients. And there are no allegations of misconduct by any
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`lawyer involved. Regardless, a reasonable investigation on Orca’s part would have revealed
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`the implausibility of these allegations: The founders of Wiz used these same attorneys in 2014
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`with their prior startup, Adallom Technologies, Ltd. (“Adallom”). This is before Orca even
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`1
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`existed or Wiz’s founders even allegedly met Orca’s founder, Mr. Shua.1 Wiz’s founders were
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`not copying Mr. Shua or Orca when they hired the same lawyers they had used for their last
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`start-up. While “copying” an attorney makes little sense, if anyone is “copying” using these
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`attorneys, it is Orca copying the founders of Wiz. These allegations are insufficient to create
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`any plausible inference of copying relevant to patent infringement under Iqbal/Twombly.2
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`Further, the Asserted Patents both issued May 30, 2023, less than two months before
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`Orca filed its Complaint. None of the alleged “copying” occurred after issuance of the
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`Asserted Patents. The Complaint alleges no specific facts supporting that Wiz had any
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`knowledge of the Asserted Patents or their alleged infringement after issuance. Orca provided
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`no notice to Wiz in advance of its lawsuit, including any letter or communication suggesting
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`that any Wiz product infringes any Orca patent, belying its feigned outrage over Wiz’s
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`products. This is fatal to its claims of indirect and willful infringement, which require
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`knowledge of both the asserted patents and infringement. At best, the Complaint alleges that
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`Wiz was merely aware of the Asserted Patents because Wiz’s outside patent prosecution
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`counsel filed earlier patent applications on behalf of Orca. But those were not even the
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`applications of the Asserted Patents themselves, rendering this allegation insufficient to confer
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`knowledge of the Asserted Patents, let alone knowledge that Wiz’s acts constituted
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`infringement. Not to mention the knowledge of Wiz’s outside patent prosecutors acting on
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`1 Wiz requests that this court take judicial notice of U.S. Patent No. 10,324,702 (see Ex. A)
`which was originally assigned to Adallom and which lists M & B IP Analysts, LLC as
`attorneys of record. M&B IP Analysts, LLC is the same firm identified by the Complaint as
`allegedly “copied” from Orca. Compl., ¶ 22. Courts routinely take judicial notice of public
`filings, including filings from the USPTO. See, e.g., Old Reliable Wholesale, Inc. v. Cornell
`Corp., 635 F.3d 539, 549 (Fed. Cir. 2011). The Court “need not accept as true allegations that
`contradict matters properly subject to judicial notice . . . .” Secured Mail Sols. LLC v. Universal
`Wilde, Inc., 873 F.3d 905, 913 (Fed. Cir. 2017) (internal quotations omitted, citation omitted)).
`2 Ashcroft v. Iqbal, 556 U.S. 662 (2009) (“Iqbal”); Bell Atlantic Corp. v. Twombly, 550 U.S.
`544 (2007) (“Twombly”).
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`2
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`behalf of other clients cannot be imputed to Wiz. If Orca’s novel theory was adopted, it would
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`render every company that hires a patent prosecutor susceptible to indirect and willful
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`infringement claims as a result of their work for other clients. That is not the law.
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`In sum, Orca’s arguments supporting indirect and willful infringement are
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`fundamentally flawed and should be dismissed.
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`III.
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`STATEMENT OF FACTS
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`A. Wiz is a Leading Cybersecurity Company.
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`Wiz is one of the leading cloud cybersecurity companies in the world. Wiz’s founders
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`are veterans of Israel’s Unit 8200, an elite intelligence division. The core team has worked
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`together for over 20 years, including as Microsoft’s cloud security group leads and as the co-
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`founders of enterprise cybersecurity firm Adallom, which Microsoft acquired for $320 million
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`in 2015. While at Microsoft, Assaf Rappaport, Wiz’s co-founder, was appointed as CEO of
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`one of Microsoft’s leading research and development hubs.3 Since leaving Microsoft to found
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`Wiz in 2020, Wiz has been recognized as a leader in the field, listed as #15 on Forbes Cloud
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`100 List and #5 on CNBC’s “disruptors” list.4 Wiz currently counts over 35% of the Fortune
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`100 among its customer base. Beyond offering cloud security products, Wiz researchers have
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`identified and disclosed potential vulnerabilities to significant media attention.5
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`B.
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`The Asserted Patents.
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`Orca accuses certain of Wiz’s products of infringing two patents—the ’031 patent and
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`the ’032 patent. Both patents issued on May 30, 2023, less than two months before Orca filed
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`3 https://www.haaretz.com/israel-news/business/2018-01-18/ty-article/microsoft-israels-r-d-
`center-names-new-34-year-old-ceo/0000017f-dbde-d3a5-af7f-fbfe81c30000.
`4 See https://www.forbes.com/lists/cloud100/?sh=6ac926147d9c;
`https://www.cnbc.com/2023/05/09/these-are-the-2023-cnbc-disruptor-50-companies.html.
`5 See e.g., Ex. B at 1 (“The problem was discovered by outside researchers at the security firm
`Wiz Inc.”)
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`3
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`its Complaint in this action. Compl.; see also ’031 patent at (45); ’032 patent at (45). The
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`
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`Asserted Patents both claim priority to the same original provisional application filed on
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`January 28, 2019 and are directed at methods of allegedly improving cloud cybersecurity. See
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`generally Compl.; ’031 patent; ’032 patent. For the ’031 Patent, the Complaint alleges that it
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`improves on prior art techniques by, inter alia, “taking at least one snapshot or requesting
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`taking of at least one snapshot of a virtual machine at rest, and analyzing the at least one
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`snapshot to detect vulnerabilities.” Compl., ¶ 37. For the ’032 Patent, the Complaint alleges
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`that it improves on the prior art “by, inter alia, accessing the snapshot of at least one virtual
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`disk of a protected virtual cloud asset, analyzing the snapshot of the at least one virtual disk by
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`matching installed applications with applications on a known list of vulnerable applications,
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`and determining, based on the matching, an existence of potential cyber vulnerabilities of the
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`protected virtual cloud asset.” Id., ¶ 66. The Complaint does not allege that Orca was the first
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`to use snapshots to scan cloud assets such as virtual machines.
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`C.
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`Defendant’s Alleged Knowledge of the Asserted Patents and Allegations
`Regarding Indirect and Willful Infringement.
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`The Complaint includes no specific factual allegations that Wiz was aware of the
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`Asserted Patents after they issued on May 30, 2023, or its alleged infringement. Instead, the
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`Complaint includes the following paragraph to support Wiz’s knowledge of the Asserted
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`Patents and its alleged infringement:
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`On information and belief, Wiz monitors Orca’s patent portfolio and was aware of
`the ’031 patent and its infringement thereof when the ’031 patent issued or soon
`thereafter at least as a result of its efforts to copy Orca’s technology and its
`patents. For example, Wiz by and through its patent prosecution counsel had
`knowledge of the ’031 patent’s parent application, U.S. Patent Application No.
`16/750,556, and its provisional application, U.S. Provisional Application No.
`62/797,718, because Wiz’s patent prosecution counsel is the same lawyer that
`filed those applications on behalf of Orca. As described above in Paragraph 22,
`Wiz’s patents also include nearly identical figures and descriptions as those found
`in the ’031 patent. In any event, Wiz has had knowledge of the ’031 patent and its
`infringement thereof since at least as early as the filing of this Complaint.
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`4
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`Compl., ¶ 58. This paragraph is representative of Orca’s allegations as to Wiz’s knowledge for
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`purposes of willful and indirect infringement. Id., ¶¶ 54, 56, 82, 84, 86 (substantially similar
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`indirect and willfulness allegations for ’031 and ’032 Patents).
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`D.
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`Plaintiff’s Allegations of “Copying” Before the Asserted Patents Issued.
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`Earlier allegations in its Complaint make various unsupported claims that Wiz was
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`“copying” Orca before the Asserted Patents issued. These are either implausible, unsupported,
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`or unrelated to the Asserted Patents. The lack of substance in these allegations only supports
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`Wiz’s lack of alleged knowledge and this motion.
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`As alleged, Wiz was founded in January 2020 by four individuals who had previously
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`led the cloud security team at Microsoft, which Orca acknowledges is “one of the top providers
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`of cloud computing environments in the world.” Compl., ¶ 12. In May 2019, Orca’s founder
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`allegedly gave a presentation at Microsoft regarding Orca’s approach to cloud security; Wiz’s
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`founders were allegedly in attendance on behalf of Microsoft. Id., ¶ 13. This was four years
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`before the Asserted Patents issued.
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`Orca purports that industry analysts have “observed” the “wholesale copying” based on
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`graphics attributed to a website, “SOURCEFORGE.” Id., ¶¶ 15-17. The purported comparison
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`does not include all the different features of Wiz or Orca cataloged on the website, rendering
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`the citation misleading.6 Regardless, the purported overlapping features are not alleged as
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`proprietary to Orca, such as “antivirus” or “encryption.” This is akin to saying two cars both
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`6 Ex. C (Printed version of https://sourceforge.net/software/compare/Orca-Security-vs-Wiz/ as
`of August 30, 2023, cited in Orca’s complaint at paragraph 15). As it is cited and relied upon
`by the Complaint, it is properly before the Court on a motion to dismiss. Schmidt v. Skolas,
`770 F.3d 241, 249 (3d Cir. 2014) (A court may consider documents attached to the complaint,
`“integral to[,] or explicitly relied upon in” the complaint on a motion to dismiss. (citation
`omitted, emphasis omitted)).
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`5
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`have wheels. There are no allegations that these purported comparisons support infringement
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`of any Asserted Patent or relate to the Asserted Patents purported “novel” approach. And the
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`Complaint does not even allege that Orca’s own products practice the Asserted Patents.
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`The Complaint alleges that Wiz copied a handful of common and well-known phrases
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`from Wiz’s website, such as the term “full stack” and “heavy lifting.” Compl., ¶¶ 18, 20. None
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`of these terms are found in the Asserted Patents, and Orca pointedly does not allege any
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`proprietary interest in such common phrases (nor could it).
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`Orca also alleges that Wiz’s use of the same patent lawyer and corporate counsel shows
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`that Wiz attempted to get Orca’s attorney’s assistance in “pass[ing] off Orca’s technology” as
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`its own. Id., ¶¶ 22-24. The patent lawyers cited were previously used by Wiz’s founders in
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`2014, years before Orca was founded. See supra, n. 1. The same is true of the corporate
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`counsel, which also have no alleged relation to the Asserted Patents. This renders Orca’s
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`allegations of “copying” by hiring the same lawyers nonsensical, implausible and irrelevant.
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`The Complaint alleges that overlap between certain boilerplate description of a figure in
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`the ’031 patent in a Wiz patent is “no coincidence.” Compl., ¶ 23. Orca does not allege that
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`this boilerplate material originated with Orca, and public patent records indicate this is not the
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`case. See, e.g., Ex. D at [0064]-[0065], Fig. 5 (substantially the same text and figure, published
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`two years prior to the filing of the Asserted Patents). There are no allegations that the
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`boilerplate description regarding “processing circuitry” relates to any alleged developments that
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`render Orca’s Asserted Patents novel over prior art.
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`6
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`Finally, the Complaint asserts as support of alleged “copying” that Wiz and Orca both
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`served coffee at an industry conference. Compl, ¶ 21. Needless to say, this has no relation to
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`the Asserted Patents or any proprietary rights of Orca.7
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`IV.
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`LEGAL STANDARD
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`To survive a motion to dismiss, a complaint must state a “plausible claim for relief.”
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`Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Id. at 678. “Factual allegations must be enough to raise a right to relief
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`above the speculative level.” Twombly, 550 U.S. at 555. “[A] pleading offering only ‘labels
`
`and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’” will not
`
`suffice to state a plausible claim for relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11
`
`(3d Cir. 2009) (quoting Twombly, 550 U.S. at 555).
`
`V.
`
`ARGUMENT
`
`A.
`
`Orca Fails to Plausibly Allege Knowledge of the Asserted Patents or Any
`Purported Infringement Prior to their Issuance or the Filing of the
`Complaint.
`
`Induced, contributory, and willful infringement claims all require prior knowledge of
`
`the specific asserted patent and alleged infringement. See Commil USA, LLC v. Cisco Sys.,
`
`Inc., 575 U.S. 632, 638-39 (2015) (holding that liability for induced infringement, like
`
`contributory infringement, requires proof that “the defendant knew of the patent” and knew as
`
`well that “the induced acts constitute patent infringement”); Bayer Healthcare LLC v. Baxalta
`
`
`7 Orca alleges “on information and belief” that Wiz has hired former Orca employees and has
`tried to acquire confidential information about Orca using third parties. Id., ¶ 25. This
`inflammatory and unsupported allegation includes no allegations related to the Asserted
`Patents, which are public.
`
`
`
`7
`
`

`

`Case 1:23-cv-00758-GBW Document 12 Filed 09/01/23 Page 13 of 26 PageID #: 175
`
`
`
`Inc., 989 F.3d 964, 988 (Fed. Cir. 2021) (“[k]nowledge of the asserted patent[s] and evidence
`
`
`
`
`
`of infringement is necessary … for a finding of willfulness”).
`
`The Complaint alleges no events that occurred between the issuance of the Asserted
`
`Patents and the filing of this lawsuit. Orca provided no notice to Wiz in advance, including any
`
`letter or communication suggesting that any Wiz product infringes any Orca patent. Orca
`
`makes three claims related to Wiz’s alleged knowledge of the Asserted Patents, each of which
`
`can be readily dismissed.
`
`(1) Wiz’s Prosecution Counsel’s Knowledge of Related Patent
`Applications is Insufficient.
`
`In paragraph 58, which is representative of Orca’s allegations on indirect and willful
`
`infringement, Orca’s first specific allegation is that Wiz “through its patent prosecution counsel
`
`had knowledge of the ’031 patent’s parent application, U.S. Patent Application No. 16/750,556,
`
`and its provisional application, U.S. Provisional Application No. 62/797,718, because Wiz’s
`
`patent prosecution counsel is the same lawyer that filed those applications on behalf of Orca.”
`
`Compl., ¶ 58. This allegation suffers from multiple flaws, any of which render it insufficient to
`
`show knowledge of the Asserted Patents.
`
`First, this allegation does not show that Wiz was aware of either Asserted Patent. It
`
`only alleges knowledge of an application. Courts have routinely held that allegations of
`
`knowledge of a patent cannot be supported by mere knowledge of a patent application. See,
`
`e.g., Helios Streaming, LLC v. Vudu, Inc., No. 19-1792, 2020 WL 2332045, at *3 (D. Del. May
`
`11, 2020) (concluding that a letter identifying the patent application which led to the issuance
`
`of the patent in suit did not suffice to establish knowledge of the patent); MasterObjects, Inc. v.
`
`Amazon.com, Inc., No. C 20-08103, 2021 WL 4685306, at *3 (N.D. Cal. Oct. 7, 2021); Maxell
`
`Ltd. v. Apple Inc., No. 19-CV-00036, 2019 WL 7905455, at *5 (E.D. Tex. Oct. 23, 2019)
`
`
`
`8
`
`

`

`Case 1:23-cv-00758-GBW Document 12 Filed 09/01/23 Page 14 of 26 PageID #: 176
`
`
`
`(“Knowledge of a patent application alone is insufficient to demonstrate knowledge of the later
`
`
`
`
`
`issued patent”); Software Rsch., Inc. v. Dynatrace LLC, 316 F. Supp. 3d 1112, 1133 (N.D. Cal.
`
`2018) (“A patent application does not provide notice of the resulting patent for indirect or
`
`willful infringement.”). This makes sense, as the nature of the claims change during
`
`prosecution both with amendments and arguments over cited prior art. These patents bear this
`
`concern out, having changed materially from their initial application to what eventually issued.
`
`Compare Ex. E (initial application) with ’031 patent (issued claims).
`
`The allegations are even weaker here because the purported application Wiz is allegedly
`
`aware of is not the application for the Asserted Patents, but earlier, related applications.
`
`Compl., ¶ 58. Courts have rejected attempts by plaintiffs to plead willful infringement on the
`
`basis that the defendant “had knowledge of a patent related to the patent-in-suit.” Jackson v.
`
`Seaspine Holdings Corp., No. 20-1784, 2022 WL 610703, at *5 (D. Del. Feb. 14, 2022); Sonos,
`
`Inc. v. Google LLC, 591 F. Supp. 3d 638, 643 (N.D. Cal. 2022) (“Mere knowledge of a ‘patent
`
`family’ or the plaintiff’s ‘patent portfolio’ is not enough.”). “The requisite knowledge of a
`
`patent allegedly infringed simply cannot be inferred from mere knowledge of other patents,
`
`even if somewhat similar.” Vasudevan Software, Inc. v. TIBCO Software Inc., No C 11-06638,
`
`2012 WL 1831543, at *3 (N.D. Cal. May 18, 2012).
`
`Further, there are no allegations that Wiz itself knew of the Asserted Patents. Rather,
`
`the allegation is that Wiz’s prosecution counsel knew of a related application by virtue of its
`
`prior representation of Orca, which ended two years before the Asserted Patents issued.
`
`Compl., ¶ 22. Orca provides no explanation why outside prosecution counsel’s knowledge as
`
`to a former client should be imputed to a different client. As explained by another court:
`
`“Plaintiff has not brought to the Court’s attention a single case holding that knowledge from
`
`
`
`9
`
`

`

`Case 1:23-cv-00758-GBW Document 12 Filed 09/01/23 Page 15 of 26 PageID #: 177
`
`
`
`outside legal counsel is imputable to a client corporation for purposes of willful patent
`
`
`
`
`
`infringement. The Court finds no such cases.” Olaf Sööt Design, LLC v. Daktronics Hoist,
`
`Inc., 325 F. Supp. 3d 456, 464 (S.D.N.Y. 2018).
`
`While other courts have distinguished Olaf, counsel for Wiz is aware of no case that
`
`suggests imputing knowledge from one former client to another unrelated client is appropriate.8
`
`See also ReefEdge Networks, LLC v. Juniper Networks, Inc., 29 F. Supp. 3d 455, 4