Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 1 of 26 PageID #: 939
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
`
`
`ORCA SECURITY LTD.,
`Plaintiff,
`
`v.
`
`WIZ, INC.
`
`Defendants.
`
`
`
`C.A. No. 23-0758-GBW
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`DEFENDANT’S OPENING BRIEF IN SUPPORT OF ITS
`MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT
`
`
`OF COUNSEL:
`
`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: November 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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`

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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 2 of 26 PageID #: 940
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`
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`TABLE OF CONTENTS
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`Page
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`I. NATURE AND STAGE OF PROCEEDINGS ...................................................................... 1
`II. SUMMARY OF ARGUMENT .............................................................................................. 1
`III. STATEMENT OF FACTS ..................................................................................................... 4
`A. Wiz Is a Leading Cybersecurity Company ...................................................................... 4
`B. The Asserted Patents ........................................................................................................ 4
`C. Defendant’s Alleged Knowledge of the Asserted Patents and Allegations Regarding
`Indirect and Willful Infringement ....................................................................................... 5
`D. Plaintiff’s Allegations of “Copying” Before the Asserted Patents Issued ......................... 6
`IV. LEGAL STANDARD ............................................................................................................. 8
`V. ARGUMENT .......................................................................................................................... 8
`A. Orca Fails to Plausibly Allege Wiz’s Knowledge of the Asserted Patents or Purported
`Infringement Prior to the Issuance or the Filing of the Complaint ..................................... 8
`Insufficient .................................................................................................................... 9
`Show Knowledge ........................................................................................................ 10
`3.Orca’s Mid-Litigation “Formal Notice” Letter Does Not Show Knowledge ............. 12
`4.Orca’s Unrelated Pre-Issuance “Copying” Allegations Do Not Show Knowledge ... 14
`B. Orca Fails to Plausibly Allege Wiz’s Knowledge of the Purported Infringement of the
`Asserted Patents ................................................................................................................ 16
`C. Orca Cannot Allege Willfulness or Indirect Infringement Based on the Filing of the
`Complaint or Amended Complaints ................................................................................. 17
`D. Orca Fails to Plausible Plead Other Elements of Indirect Infringement ........................ 18
`1.Induced Infringement ................................................................................................ 18
`2.Contributory Infringement ........................................................................................ 19
`VI. CONCLUSION ..................................................................................................................... 20
`
`1.Wiz’s Prosecution Counsel’s Alleged Knowledge of Related Patent Applications is
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`2.Wiz’s Alleged Tiny Amount of Overlapping Boilerplate Patent Disclosure Does Not
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`i
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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 3 of 26 PageID #: 941
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`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .........................................................................................................2, 8
`Bayer Healthcare LLC v. Baxalta Inc.,
`989 F.3d 964 (Fed. Cir. 2021)..........................................................................................8, 9
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................2, 8, 12
`BillJCo, LLC v. Apple Inc.,
`583 F. Supp. 3d 769 (W.D. Tex. 2022) ..............................................................................16
`Bos. Sci. Corp. v. Nevro Corp.,
`415 F. Supp. 3d 482 (D. Del. 2019) .....................................................................................8
`Boston Sci. Corp. v. Nevro Corp.,
`560 F. Supp. 3d 837 (D. Del. 2021) ...................................................................................17
`Cleveland Medical Devices Inc. v. Resmed Inc., No. 22-794,
`2023 WL 6389628 (D. Del. Oct. 2, 2023) .........................................................................17
`
`Commil USA, LLC v. Cisco Sys., Inc.,
`575 U.S. 632 (2015) .............................................................................................................8
`CyWee Grp. Ltd. v. HTC Corp.,
`312 F. Supp. 3d 974 (W.D. Wash. 2018) ...........................................................................19
`Deere & Co. v. AGCO Corp., No. 18-827,
`2019 WL 668492 (D. Del. Feb. 19, 2019) .........................................................................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
`Dynamic Data Techs., LLC v. Amlogic Holdings Ltd., No. 19-1239,
`2020 WL 4365809 (D. Del. July 30, 2020) .......................................................................17
`Dynamic Data Techs., LLC v. Brightcove Inc., No. 19-1190,
`2020 WL 4192613 (D. Del. July 21, 2020) .......................................................................17
`
`Express Mobile, Inc., v. Squarespace, Inc., No. 20-1163,
`2021 WL 3772040 (D. Del. Aug. 25, 2021) ......................................................................13
`
`Fujitsu Ltd. v. Netgear Inc.,
`620 F.3d 1321 (Fed. Cir. 2010)..........................................................................................19
`
`ii
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`

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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 4 of 26 PageID #: 942
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`
`
`Greatbatch Ltd. v. AVX Corp., No. 13-723,
`2016 WL 7217625 (D. Del. Dec. 13, 2016) .......................................................................17
`Helios Streaming, LLC v. Vudu, Inc., No. 19-1792,
`2020 WL 2332045 (D. Del. May 11, 2020) .......................................................................10
`
`Hutchins v. Zoll Med. Corp.,
`492 F.3d 1377 (Fed. Cir. 2007)..........................................................................................16
`iFIT Inc. v. Peloton Interactive, Inc., No. 21-507,
`2022 WL 609605 (D. Del. Jan. 28, 2022) ..........................................................................18
`
`In re Perle,
`725 F.3d 1023 (9th Cir. 2013) .............................................................................................9
`Intell. Ventures I LLC v. Toshiba Corp.,
`66 F. Supp. 3d 495 (D. Del. 2014) .....................................................................................13
`Iron Oak Techs., LLC v. Dell, Inc., No. 17-cv-999,
`2018 WL 1631396 (W.D. Tex. Apr. 4, 2018)....................................................................20
`
`Maldonado v. Ramirez,
`757 F.2d 48 (3d. Cir. 1985)..................................................................................................9
`Masimo Corp. v. Philips Elecs. N. Am. Corp., No. 09-80,
`2014 WL 4652333 (D. Del. Sept. 12, 2014) ......................................................................15
`
`MasterObjects, Inc. v. Amazon.com, Inc., No. C 20-08103,
`2021 WL 4685306 (N.D. Cal. Oct. 7, 2021) ................................................................10, 14
`
`Maxell Ltd. v. Apple Inc., No. 19-cv-36,
`2019 WL 7905455 (E.D. Tex. Oct. 23, 2019) ...................................................................10
`
`Neology, Inc. v. Kapsch Trafficcom IVHS, Inc., No. 13-2052,
`2014 WL 4675316 (D. Del. Sept. 19, 2014) ......................................................................20
`
`Olaf Sööt Design, LLC v. Daktronics Hoist, Inc.,
`325 F. Supp. 3d 456 (S.D.N.Y. 2018) ..................................................................................9
`Old Reliable Wholesale, Inc. v. Cornell Corp.,
`635 F.3d 539 (Fed. Cir. 2011)..............................................................................................2
`Orlando Commc’ns LLC v. LG Elecs., Inc., No. 14-cv-1017,
`2015 WL 1246500 (M.D. Fla. Mar. 16, 2015) ..................................................................13
`
`Philips N.V. v. ASUSTeK Comput. Inc, No. 15-1125,
`2016 WL 6246763 (D. Del. Oct. 25, 2016) .......................................................................20
`
`ReefEdge Networks, LLC v. Juniper Networks, Inc.,
`29 F. Supp. 3d 455 (D. Del. 2014) .......................................................................................9
`Schmidt v. Skolas,
`770 F.3d 241 (3d Cir. 2014).................................................................................................6
`
`iii
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`

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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 5 of 26 PageID #: 943
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`
`
`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) .............................................................................10
`Sonos, Inc. v. Google LLC,
`591 F. Supp. 3d 638 (N.D. Cal. 2022) .........................................................................13, 14
`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) .................................................................16, 17
`
`VLSI Tech. LLC v. Intel Corp., No. 18-966,
`2019 WL 1349468 (D. Del. Mar. 26, 2019) ......................................................................17
`
`ZapFraud, Inc. v. Barracuda Networks, Inc.,
`528 F. Supp. 3d 247 (D. Del. 2021) ...................................................................................17
`STATUTES
`35 U.S.C. § 271(c) .........................................................................................................................19
`RULES
`Fed. R. Civ. P. 12(b)(6)....................................................................................................................1
`
`iv
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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 6 of 26 PageID #: 944
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`
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`I. 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
`
`patent”) (D.I. 1-1, Ex. 1) and 11,663,032 (the “’032 patent”) (D.I. 1-1, Ex. 2). See D.I. 1,
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`Complaint (“Compl.”). On September 1, 2023 Wiz moved to dismiss Orca’s claims regarding
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`indirect and willful infringement. See D.I. 12, Motion to Dismiss (“Initial MTD”). On
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`September 15, 2023, Orca filed an Amended Complaint adding U.S. Patent Nos. 11,693,685 (the
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`“’685 patent”) (D.I. 13-1, Ex. 7), 11,726,809 (the “’809 patent”) (D.I. 13-1, Ex. 8), and
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`11,740,926 (the “’926 patent”) (D.I. 13-1, Ex. 9) to its infringement claims. See D.I. 13, First
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`Amended Complaint (“FAC”). On October 10, 2023, Orca filed a Second Amended Complaint
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`adding U.S. Patent No. 11,775,326 (the ’326 patent”) (D.I. 15-1, Ex. 14) to its infringement
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`claims, in addition to the already included ’031, ’032, ’685, ’809, and ’926 patents (all patents
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`collectively, the “Asserted Patents”). See D.I. 15, Second Amended Complaint (“SAC”).
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`In each of its Complaints, Orca alleges that Wiz’s cybersecurity products, which provide
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`a variety of tools and features for managing cloud security, infringe the Asserted Patents. Wiz
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`moves to dismiss the claims regarding indirect and willful infringement asserted in Orca’s SAC
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`pursuant to Fed. R. Civ. P. 12(b)(6).
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`II.
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`SUMMARY OF ARGUMENT
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`Orca has now had three chances to plead its allegations of willful and indirect
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`infringement. Orca’s latest approach fares no better than the prior two attempts. This reveals
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`what Orca’s lawsuit is really about: creating a baseless narrative to distract from its failures in
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`the marketplace.
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`Orca’s farfetched allegations include claims that Wiz choosing to serve coffee at a
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`conference and using the same lawyer as Orca is somehow evidence of Wiz “copying” Orca’s
`1
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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 7 of 26 PageID #: 945
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`
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`patented technology. Orca has no conceivable intellectual property rights in serving coffee, nor
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`is it the first company to do so. Orca’s allegation that Wiz “copied” its intellectual property by
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`hiring the same corporate and patent prosecution lawyers is just as implausible and irrelevant.
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`Had Orca conducted a reasonable investigation, it would have discovered the founders of Wiz
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`first hired the lawyers Orca mentions in connection with their prior startup, Adallom
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`Technologies, Ltd. (“Adallom”), in 2014—over 5 years before Orca existed or Wiz’s founders
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`allegedly met Orca’s founder, Mr. Shua.1 Orca’s founders could not have been “copying” Mr.
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`Shua or Orca when they hired the same lawyers they had previously used. While “copying” a
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`lawyer makes little sense, if anyone is “copying” lawyers, it is Orca. Wiz already pointed out the
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`implausibility of these allegations in its prior motion to dismiss, but Orca continues to press these
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`claims in its latest amended complaint without even acknowledging their implausibility. This
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`reflects Orca’s approach to this case—ignoring the actual facts to try and create a narrative in the
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`market. Regardless, allegations of serving coffee or using the same lawyer are insufficient to
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`create any plausible inference relevant to patent infringement under the Twomby/Iqbal standard.2
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`In its latest attempt, Orca mostly repeats the same insufficient facts it relied on
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`previously. It concludes by newly arguing that the “pattern” of implausible or insufficient
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`allegations is enough to plead willful or indirect infringement. But combining implausible
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`1 Wiz repeats its request 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 is the same firm identified in the SAC as allegedly being
`“copied” from Orca. SAC, ¶ 23. 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).
`2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 548 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 679
`(2009).
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`
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`2
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`

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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 8 of 26 PageID #: 946
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`
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`allegations does not create any additional facts. For newly identified patents, Orca relies on a
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`letter it sent to Wiz’s outside counsel during this litigation and three days before filing the FAC.
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`See D.I. 15-1, Ex. 10. Of course, that Orca felt the need to send this letter during the litigation is
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`a recognition that its prior allegations of indirect and willful infringement were insufficient.
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`Regardless, this letter itself does not create claims for willful infringement. The letter,
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`purporting to provide notice of infringement of patents in the same family with essentially the
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`same claims as those already asserted in this case, provided no real opportunity for Wiz to “cease
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`and desist” infringement as the 300+ pages of correspondence demanded. Indeed, the letter was
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`sent at 10:21 pm ET and demanded a signed affidavit within 65 hours, on a deadline that
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`coincided precisely with Orca’s deadline to respond to Wiz’s original motion to dismiss. See Ex.
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`N (email with time in PT); D.I. 15-1, Ex. 10. Orca’s transparent attempt to manufacture
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`willfulness allegations mid-litigation should be rejected.
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`The most important fact here is that Orca failed to provide notice to Wiz in advance of
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`filing this lawsuit in July 2023 suggesting that any Wiz product infringes any Orca patent. This
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`is fatal to Orca’s claims of indirect and willful infringement, which require knowledge of both
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`the asserted patents and infringement. At best, Orca alleges that Wiz was aware of the Asserted
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`Patents because Wiz’s outside patent prosecution counsel filed earlier patent applications on
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`behalf of Orca. But those applications were not the same as those of the Asserted Patents,
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`rendering this allegation insufficient to confer knowledge of the Asserted Patents or of
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`infringement. And knowledge of Wiz’s outside patent prosecutors acting on behalf of other
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`clients cannot be imputed to Wiz. If it could, every company that hires a patent prosecutor
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`would be susceptible to indirect and willful infringement claims as a result of their work for
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`other clients. After three attempts at amendment, Orca’s claims against Wiz for indirect and
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`3
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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 9 of 26 PageID #: 947
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`willful infringement should be dismissed.
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`III.
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`STATEMENT OF FACTS
`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 Wiz 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 in
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`2015. While at Microsoft, Wiz’s co-founder Assaf Rappaport, was appointed as CEO of one of
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`Microsoft’s leading research and development hubs.3 Since leaving Microsoft to found Wiz in
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`2020, Wiz has been recognized as a leader in the field, listed as No. 15 on Forbes Cloud 100 List
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`and No. 5 on CNBC’s “disruptors” list.4 Wiz currently counts over 35% of the Fortune 100
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`among its customer base. Beyond offering cloud security products, Wiz’s researchers have
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`identified and disclosed potential vulnerabilities to significant media attention.5
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`B. The Asserted Patents
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`Orca accuses certain of Wiz’s products of infringing six patents—the ’031, ’032, ’685,
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`’809, ’926, and ’326 patents. The ’031 and ’032 patents issued on May 30, 2023, less than two
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`months before Orca filed its initial Complaint in this action. See Compl., ¶¶ 34, 63. The ’685
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`patent issued on July 4, 2023, around a week before the Complaint was filed. See SAC, ¶ 110.
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`The remaining patents issued after the initial Complaint was filed: the ’809 patent issued on
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`August 15, 2023, the ’926 patent on August 29, 2023, and the ’326 patent on October 3, 2023.
`
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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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`4
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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 10 of 26 PageID #: 948
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`See id., ¶¶ 145, 180, 214. The Asserted Patents all claim priority to the same original provisional
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`application filed on January 28, 2019 and are directed at methods of allegedly improving cloud
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`security. See generally SAC; Asserted Patents.
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`The SAC alleges that the ’031 patent improves on prior art techniques by, inter alia,
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`“taking at least one snapshot or requesting taking of at least one snapshot of a virtual machine at
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`rest, and analyzing the at least one snapshot to detect vulnerabilities.” SAC, ¶ 40. The SAC
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`alleges that the ’032 patent improves on prior art “by, inter alia, accessing the snapshot of at
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`least one virtual disk of a protected virtual cloud asset, analyzing the snapshot of the at least one
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`virtual disk by matching installed applications with applications on a known list of vulnerable
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`applications, and determining, based on the matching, an existence of potential cyber
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`vulnerabilities of the protected virtual cloud asset.” Id., ¶ 77. The SAC allegations for the other
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`Asserted Patents are similar. See id., ¶¶ 113, 148, 183, 217. Notably, none of the Complaints
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`allege that Orca was the first to use snapshots to scan cloud assets such as virtual machines.
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`C. Defendant’s Alleged Knowledge of the Asserted Patents and Allegations
`Regarding Indirect and Willful Infringement
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`The SAC does not include sufficient factual allegations that Wiz had prior knowledge of
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`the Asserted Patents or their infringement. The SAC includes the following claims to support
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`Wiz’s alleged knowledge of all the Asserted Patents and their infringement for purposes of
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`willful and indirect infringement: (1) “On information and belief, Wiz monitors Orca’s patent
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`portfolio and was aware of the [Asserted Patents] and [their] infringement thereof when the
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`[Asserted] patent issued or soon thereafter at least as a result of its collective pattern of efforts to
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`copy Orca’s technology and its patents”; (2) Wiz had knowledge of the Asserted Patents because
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`“Wiz’s patent prosecution counsel is the same lawyer that filed those applications on behalf of
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`Orca;” (3) “Wiz’s patents also include nearly identical figures and descriptions as those found in
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`
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`5
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`

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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 11 of 26 PageID #: 949
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`
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`the [Asserted Patents], and, on information and belief, these figures in Wiz’s patents were copied
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`from Orca’s patents and/or patent applications;” and (4) Wiz had knowledge of the Asserted
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`Patents “since at least as early as the filing” of the Complaints. Id., ¶¶ 57, 62, 66, 93, 98, 102,
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`129, 134, 138, 164, 169, 173, 198, 203, 207, 233, 238, 242.
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`The SAC also alleges that over two months after Orca first filed this lawsuit and three
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`days before Orca filed the FAC, Orca sent Wiz a letter informing Wiz that it was infringing the
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`’685, ’809, and ’926 patents and the yet-to-be issued ’326 patent. See, e.g., id., ¶¶ 129, 173, 242.
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`The SAC includes no specific allegations that Wiz was aware of the ’031 or ’032 patents or their
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`infringement until the Complaint was filed, or the ’326 patent or its infringement after it issued.
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`D. Plaintiff’s Allegations of “Copying” Before the Asserted Patents Issued
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`The SAC alleges various unsupported claims that Wiz was “copying” Orca. The SAC
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`recognizes that Wiz was founded in January 2020 by a team that previously led a team at
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`“Microsoft, one of the top providers of cloud computing environments in the world.” SAC, ¶ 13.
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`In May 2019, Orca’s founder allegedly gave a presentation at Microsoft regarding Orca’s
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`approach to cloud security, and Wiz’s founders were allegedly in attendance on behalf of
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`Microsoft. Id., ¶ 14. This was over four years before any of 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., ¶¶ 16-18. The alleged comparison
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`does not include all the different features of Wiz or Orca cataloged on the website, rendering the
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`citation misleading.6 The SAC does not allege the purported overlapping features such as
`
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`6 See Ex. C (Printed version of https://sourceforge.net/software/compare/Orca-Security-vs-Wiz/
`as of August 30, 2023, cited in Orca’s SAC paragraph 16). Because it is cited and relied upon by
`the SAC, 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 and emphasis omitted)).
`6
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`

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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 12 of 26 PageID #: 950
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`“Antivirus” or “Encryption” are proprietary to Orca in any way. The “overlap” is akin to saying
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`two cars both have wheels. Orca does not even allege that Orca’s own products practice the
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`Asserted Patents.
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`Orca also alleges that Wiz “copied” a handful of phrases and an analogy from Orca’s
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`marketing materials. Specifically, Orca alleges that Wiz copied an analogy to an “MRI,” the use
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`of the phrases “heavy lifting,” “full stack;” and “attach path analysis.” SAC, ¶¶ 19-21. None of
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`these terms are in the Asserted Patents, and Orca does not allege any proprietary interest in such
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`common phrases (nor could it). Orca points to a technical brief it published in 2020 to argue
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`Wiz “knew or should have known” the technology described in the marketing was patented, but
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`Orca notably does not allege Wiz actually saw this brief. Id., ¶ 20. Orca also alleges that Wiz
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`copied Orca sponsoring “a coffee booth” like Orca had at a security conference. Id., ¶ 22.
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`Needless to say, this has no relation to the Asserted Patents or any of Orca’s proprietary rights.
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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 lawyer’s assistance in “pass[ing] off Orca’s technology and
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`intellectual property” as its own. Id., ¶¶ 23-25. But Orca’s patent lawyers were previously used
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`by Wiz’s founders in 2014, years before Orca was founded. The same is true of the corporate
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`counsel, who also have no alleged relation to the Asserted Patents. Orca similarly alleges that
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`the overlap between certain boilerplate descriptions of a figure in ’031 and ’032 is “no
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`coincidence” Id., ¶¶ 23-24. But Orca does not allege this boilerplate material originated with
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`Orca or relates to any alleged development that renders the Asserted Patents novel over prior art.
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`Orca finally claims the above allegations show a “pattern [that] leads to the further
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`conclusion, on information and belief, that Wiz monitors virtually every aspect of Orca’s
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`7
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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 13 of 26 PageID #: 951
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`business” and then copies “anything it deems would give it an unfair advantage.” 7 SAC, ¶ 27.
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`But merely combining insufficient allegations does not transform them in substance.
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`IV. 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 548. “A complaint must include more than
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`mere ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action’ to
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`survive a motion to dismiss.” Bos. Sci. Corp. v. Nevro Corp., 415 F. Supp. 3d 482, 492 (D. Del.
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`2019) (quoting Twombly, 550 U.S. at 555).
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`V. ARGUMENT
`A. Orca Fails to Plausibly Allege Wiz’s Knowledge of the Asserted Patents or
`Purported Infringement Prior to the Issuance or the Filing of the Complaint
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`Induced, contributory, and willful infringement claims all require prior knowledge of the
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`specific asserted patent and alleged infringement. See Commil USA, LLC v. Cisco Sys., Inc., 575
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`U.S. 632, 638-39 (2015) (holding that liability for induced infringement, like contributory
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`infringement, requires proof that “the defendant knew of the patent” and that “the induced acts
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`constitute patent infringement”); Bayer Healthcare LLC v. Baxalta Inc., 989 F.3d 964, 988 (Fed.
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`Cir. 2021) (“[k]nowledge of the asserted patent[s] and evidence of infringement is necessary …
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`for a finding of willfulness”).
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`7 Orca alleges that “on information and belief, Wiz has hired former Orca employees and worked
`with third parties to acquire Orca’s confidential information . . . and has used that confidential
`information in furtherance of its collective pattern of efforts to copy and to compete unfairly with
`Orca.” SAC ¶ 26. This inflammatory and unsubstantiated allegation includes no facts related to
`the Asserted Patents, which are publicly available.
`8
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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 14 of 26 PageID #: 952
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`1. Wiz’s Prosecution Counsel’s Alleged Knowledge of Related Patent
`Applications is Insufficient
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`Orca’s allegation that Wiz had knowledge of the Asserted Patents because its prosecution
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`counsel was the same lawyer that filed the parent and provisional applications for Orca’s
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`Asserted Patents suffers from multiple flaws, each of which render it insufficient to show
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`knowledge of the Asserted Patents. See, e.g., SAC, ¶ 57.
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`First, Orca’s allegation that Wiz “knowingly copied Orca’s patents” through its
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`“prosecuting attorney” (id., ¶ 23) does not state that Wiz was aware of the Asserted Patents.
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`Orca simply alleges that Wiz’s prosecution counsel knew of a related application because of their
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`prior representation of Orca—which ended two years before the Asserted Patents issued. Id.
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`And Orca provides no explanation for why outside prosecution counsel’s apparent knowledge
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`about a former client should be imputed to a different client. It should not. As one court
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`explained: “Plaintiff has not brought to the Court’s attention a single case holding that
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`knowledge from outside legal counsel is imputable to a client corporation for purposes of willful
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`patent infringement. The Court finds no such cases.” Olaf Sööt Design, LLC v. Daktronics
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`Hoist, Inc., 325 F. Supp. 3d 456, 464 (S.D.N.Y. 2018). While some courts have distinguished
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`Olaf, counsel for Wiz is aware of no case that suggests imputing knowledge from one former
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`client to another unrelated client is appropriate.8 See ReefEdge Networks, LLC v. Juniper
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`Networks, Inc., 29 F. Supp. 3d 455, 458-59 (D. Del. 2014) (no pre-suit knowledge where
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`defendants in-house counsel had previously worked for a company that owned patents-in-suit).
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`8 See Ex. E, BSD Crown, Ltd. v. Amazon.com, Inc., No. 3:23-cv-00057, D.I. 51 (N.D. Cal. Jul.
`27, 2023), at 6. BSD dismisses willfulness claims while differentiating Olaf based on its
`procedural posture but also quotes In re Perle: “the Ninth Circuit held that there is no precedent
`supporting ‘imput[ing] to a client knowledge that [its] lawyer gained while representing a
`different client.’” In re Perle, 725 F.3d 1023, 1028 (9th Cir. 2013) (citing Maldonado v.
`Ramirez, 757 F.2d 48, 51 (3d. Cir. 1985)).
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`9
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`Case 1:23-cv-00758-GBW Document 18 Filed 11/21/23 Page 15 of 26 PageID #: 953
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`Additionally, the impact of Orca’s “knowledge” theory should not be underestimated.
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`Entertaining such a theory would create a minefield of knowledge for every prosecution lawyer
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`to navigate based on their prosecution of patents for other clients. Expertise in a field would
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`suddenly become a liability because knowledge of prior clients’ patents could be imputed to
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`other clients in future patent infringement lawsuits. The law does not support such a result.
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`Second, Orca does not sufficiently allege that the shared lawyers made Wiz aware of any
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`of the Asserted Patents; it merely claims that they made Wiz aware of patent applications. See,
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`e.g., SAC, ¶¶ 57,