Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 1 of 26 PageID #: 1143
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`ORCA SECURITY LTD.,
`
`
`Plaintiff,
`
`
`
`v.
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`
`WIZ, INC.,
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`
`
`
`Defendant.
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`
`
`
`
`C.A. No. 23-758 (GBW)
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`
`PLAINTIFF’S ANSWERING BRIEF IN OPPOSITION TO DEFENDANT’S MOTION
`TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT
`
`MORRIS, NICHOLS, ARSHT &TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Rodger D. Smith II (#3778)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@morrisnichols.com
`rsmith@morrisnichols.com
`
`Attorneys for Plaintiff Orca Security Ltd.
`
`
`
`
`OF COUNSEL:
`
`Douglas E. Lumish
`Lucas Lonergan
`LATHAM & WATKINS LLP
`140 Scott Drive
`Menlo Park, CA 94025
`(650) 328-4600
`
`Blake R. Davis
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`(415) 391-0600
`
`Kristina D. McKenna
`LATHAM & WATKINS LLP
`200 Clarendon Street
`Boston, MA 02116
`(617) 948-6000
`
`December 15, 2023
`
`
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`

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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 2 of 26 PageID #: 1144
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`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
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`
`
`Page
`
`NATURE AND STAGE OF THE PROCEEDING.............................................................1
`
`SUMMARY OF ARGUMENT ...........................................................................................1
`
`III.
`
`STATEMENT OF FACTS ..................................................................................................3
`
`A. Wiz Copied Orca’s Business and Technology .........................................................3
`
`B. Wiz’s Knowledge Of The Asserted Patents .............................................................4
`
`C. Wiz Continues To Knowingly Infringe The Asserted Patents And
`Encourage Others To Infringe .................................................................................6
`
`IV.
`
`LEGAL STANDARD ..........................................................................................................6
`
`V.
`
`ARGUMENT .......................................................................................................................7
`
`A.
`
`B.
`
`C.
`
`The SAC Sufficiently Pled Wiz’s Pre-Suit Knowledge Of The
`Asserted Patents And Its Infringement Thereof.......................................................7
`
`The SAC Sufficiently Pled Wiz’s Post-Suit Knowledge Of The
`’031, ’032, ’685, ’809, And ’926 Patents And Infringement Thereof
`................................................................................................................................15
`
`The SAC Sufficiently Pled The Remaining Elements for its Indirect
`and Willful Infringement Claims ...........................................................................16
`
`VI.
`
`CONCLUSION ..................................................................................................................20
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`
`
`
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`
`i
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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 3 of 26 PageID #: 1145
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`10x Genomics, Inc. v. Celsee, Inc.,
`C.A. No. 19-862-CFC-SRF, 2019 WL 5595666 (D. Del. Oct. 30, 2019) .........................13, 14
`
`Afros S.p.A. v. Krauss-Maffei Corp.,
`671 F. Supp. 1402 (D. Del. 1987), aff’d, 848 F.2d 1244 (Fed. Cir. 1988) ..............................13
`
`Anderson News, L.L.C. v. Am. Media, Inc.,
`680 F.3d 162 (2d Cir. 2012).....................................................................................................14
`
`APS Tech., Inc. v. Vertex Downhole, Inc.,
`C.A. No. 19-1166-MN, 2020 WL 4346700 (D. Del. July 29, 2020) ...................................7, 20
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ...................................................................................................................7
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................7
`
`Cleveland Med. Devices Inc. v. ResMed, Inc.,
`C.A. No. 22-794-GBW, 2023 WL 6389628 (D. Del. Oct. 2, 2023) ............................10, 16, 19
`
`Corephotonics, Ltd. v. Apple, Inc.,
`No. 17-cv-06457-LHK, 2018 WL 4772340 (N.D. Cal. Oct. 1, 2018) .......................................9
`
`CyWee Group Ltd. v. HTC Corporation,
`312 F. Supp. 3d 974 (W.D. Wash. 2018) ...........................................................................17, 18
`
`Deere & Co. v. AGCO Corp., et al.,
`C.A. No. 18-827-CFC, 2019 WL 668492 (D. Del. Feb. 19, 2019) ...................................14, 15
`
`Dodots Licensing Solutions LLC v. Lenovo Holding Company, Inc.,
`C.A. No. 18-098-MN, 2018 WL 6629709 (D. Del. Dec. 19, 2018) ........................................17
`
`DSM IP Assets, B.V. v. Honeywell Int’l, Inc.,
`C.A. No. 23-675-WCB, 2023 WL 7214672 (D. Del. Nov. 2, 2023) .......................................16
`
`Dynamic Data Techs., LLC v. Amlogic Holdings Ltd.,
`C.A. No. 19-1239-CFC, 2020 WL 4365809 (D. Del. July 30, 2020) ......................................19
`
`Dynamic Data Techs., LLC v. Brightcove Inc.,
`C.A. No. 19-1190-CFC, 2020 WL 4192613 (D. Del. July 21, 2020) ......................................16
`
`
`
`
`ii
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`

`

`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 4 of 26 PageID #: 1146
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`
`
`EyesMatch Ltd. v. Facebook, Inc.,
`C.A. No. 21-111-RGA-JLH, 2021 WL 4501858 (D. Del. Oct. 1, 2021) ................................18
`
`Greatbatch Ltd. v. AVX Corporation,
`C.A. No. 13-723-LPS, 2016 WL 7217625 (D. Del. Dec. 13, 2016)........................................20
`
`Idenix Pharms. LLC v. Gilead Scis., Inc.,
`C.A. No. 13-1987-LPS, 2016 WL 7380530 (D. Del. Dec. 4, 2016)........................................13
`
`iFIT Inc. v. Peloton Interactive, Inc.,
`C.A. No. 21-507-RGA, 2022 WL 609605 (D. Del. Jan. 28, 2022) .........................................16
`
`In re Bill of Lading Transmission & Processing Sys. Patent Litig.,
`681 F.3d 1323 (Fed. Cir. 2012)..................................................................................................6
`
`In re Burlington Coat Factory Sec. Litig.,
`114 F.3d 1410 (3d Cir. 1997).....................................................................................................7
`
`IOENGINE, LLC v. PayPal Holdings, Inc.,
`C.A. No. 18-452-WCB, 2019 WL 330515 (D. Del. Jan. 25, 2019) ........................................18
`
`Kaufman Company, Inc. v. Lantech, Inc.,
`807 F.2d 970 (Fed. Cir. 1986)..................................................................................................13
`
`LiTL LLC v. Dell Techs. Inc.,
`C.A. No. 23-121-RGA, 2023 WL 7922176 (D. Del. Nov. 16, 2023)......................................12
`
`LiTL LLC v. HP Inc.,
`C.A. No. 23-120-RGA, 2023 WL 7921477 (D. Del. Nov. 16, 2023)......................................12
`
`Malibu Boats, LLC v. MasterCraft Boat Co., LLC,
`No. 3:16-CV-82-TAV-HBG, 2016 WL 8286158 (E.D. Tenn. Oct. 28, 2016) ..........................7
`
`Minn. Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc.,
`976 F.2d 1559 (Fed. Cir. 1992)................................................................................................13
`
`Nalco Co. v. Chem-Mod, LLC,
`883 F.3d 1337 (Fed. Cir. 2018)............................................................................................6, 12
`
`Nat’l Presto Indus. v. West Bend Co.,
`76 F.3d 1185 (Fed. Cir. 1996)....................................................................................................7
`
`SEB S.A. v. Montgomery Ward & Co., Inc.,
`594 F.3d 1360 (Fed. Cir. 2010), aff’d sub nom. Glob.-Tech Appliances, Inc. v.
`SEB S.A., 563 U.S. 754 (2011) ................................................................................................10
`
`SoftView LLC v. Apple Inc.,
`C.A. No. 10-389-LPS, 2012 WL 3061027 (D. Del. July 26, 2012) ..............................7, 12, 15
`
`
`
`
`iii
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`

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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 5 of 26 PageID #: 1147
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`
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`Tonal Sys., Inc. v. ICON Health & Fitness, Inc.,
`C.A. No. 20-1197-LPS, 2021 WL 1785072 (D. Del. May 5, 2021) ......................................8, 9
`
`Torchlight Techs. LLC v. Daimler AG, et al.,
`C.A. No. 22-751-GBW, D.I. 95 (D. Del. Feb. 2, 2023) ...........................................................16
`
`Valinge Innovation AB v. Halstead New England Corp.,
`C.A. No. 16-1082-LPS-CJB, 2018 WL 2411218 (D. Del. May 29, 2018) .............................19
`
`VLSI Tech. LLC v. Intel Corp.,
`C.A. No. 18-966-CFC, 2019 WL 1349468 (D. Del. Mar. 26, 2019) .......................................16
`
`WCM Indus., Inc. v. IPS Corp.,
`721 F. App’x 959 (Fed. Cir. 2018) ................................................................................9, 12, 13
`
`
`
`
`
`
`
`
`iv
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`

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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 6 of 26 PageID #: 1148
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`
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`I.
`
`NATURE AND STAGE OF THE PROCEEDING
`
`Plaintiff Orca Security Ltd. (“Orca”) filed the operative Second Amended Complaint
`
`(D.I. 15, “SAC”) on October 10, 2023, alleging that Defendant Wiz, Inc. (“Wiz”) infringes six
`
`patents: U.S. Patent Nos. 11,663,031 (the “’031 patent”), 11,663,032 (the “’032 patent”),
`
`11,693,685 (the “’685 patent”), 11,726,809 (the “’809 patent”), 11,740,926 (the “’926 patent”),
`
`and 11,775,326 (the “’326 patent”) (collectively, the “Asserted Patents”). On November 21, 2023,
`
`Wiz moved to dismiss Orca’s claims for indirect and willful infringement of each patent. D.I. 18.
`
`Wiz does not challenge Orca’s claims for direct infringement. See id.
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`II.
`
`SUMMARY OF ARGUMENT
`
`Orca filed this case to put an end to Wiz’s flagrant, ongoing, and unauthorized use of Orca’s
`
`patented technologies. Wiz does not deny that Orca has sufficiently pled direct infringement of
`
`the six Asserted Patents, and does not contend that any patent should be dismissed. Thus, there is
`
`no dispute that Orca’s claims will and must move forward. Wiz instead asks the Court to find that
`
`Orca insufficiently pleads Wiz’s knowledge of the Asserted Patents and infringement thereof—
`
`without actually denying that Wiz did have such knowledge—and dismiss Orca’s claims of
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`indirect and willful infringement. The Court should deny Wiz’s motion for three reasons.
`
`First, Orca has sufficiently pled pre-suit knowledge for each Asserted Patent based on a
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`September 12, 2023 cease-and-desist letter (for the ’685, ’809, ’926, and ’326 patents) and, on
`
`information and belief, Wiz’s monitoring of Orca’s patent portfolio supported by an ongoing
`
`pattern of copying (for all patents). Regarding the notice letter, Wiz does not dispute that the letter
`
`identified the accused Wiz product and detailed Orca’s infringement allegations related thereto.
`
`Wiz only complains that it had insufficient time to act in response. Wiz is wrong. Not only does
`
`Wiz ignore that the letter provided Wiz with four weeks to evaluate the ’326 patent, but Wiz fails
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`to cite a single case (for the remaining patents) holding that there is any minimum notice
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`

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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 7 of 26 PageID #: 1149
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`requirement in the law or that three days is insufficient notice. Three days is more than enough
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`time when combined with the totality of the circumstances pled in the complaint, including Wiz’s
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`prior knowledge of the patent family, ongoing pattern of copying, and Orca’s virtual marking of
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`its patents. Regarding Wiz’s pre-suit knowledge from monitoring Orca’s patent portfolio, Wiz
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`asks the Court to improperly draw inferences against Orca and ignores Federal Circuit caselaw
`
`holding that pre-issuance copying can show pre-suit knowledge of an issued patent.
`
`Second, Orca has sufficiently pled indirect and willful infringement based on post-suit
`
`knowledge for the ’031, ’032, ’685, ’809, and ’926 patents in the Second Amended Complaint
`
`based on the allegations in the Original Complaint (D.I. 1) and First Amended Complaint (D.I. 13,
`
`“FAC”). In arguing otherwise, Wiz ignores the majority view in this District and others that
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`knowledge in an amended pleading may stem from allegations made in a prior complaint. And
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`Wiz does not dispute that the prior complaints stated a plausible basis for infringement, thereby
`
`providing Wiz knowledge thereof.
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`Third, Orca has sufficiently pled the remaining elements of its indirect and willful
`
`infringement claims. Wiz ignores Orca’s detailed allegations of intent in the SAC that identify the
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`marketing materials, webpages, and videos that Wiz uses to instruct its customers how to infringe
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`the Asserted Patents, including highlighting the particular patent-related language used therein.
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`Regarding contributory infringement, Wiz asks Orca to prove its case at the pleading stage,
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`insisting that Orca provide evidence that the accused Wiz product is not suitable for substantial,
`
`non-infringing use. But the law does not require Orca to provide evidence at the pleading stage at
`
`all, let alone to provide evidence that Wiz’s infringing products have no non-infringing use. Orca
`
`has pled sufficient facts to maintain that claim, and nothing more is required under the law. Finally,
`
`2
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`

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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 8 of 26 PageID #: 1150
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`Wiz ignores well-settled law that a plaintiff need not plead egregiousness to state a claim for willful
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`infringement.
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`The SAC more than satisfies the pleading standard, and Wiz’s motion should be denied.
`
`III.
`
`STATEMENT OF FACTS
`
`Orca was founded in 2019 to create a cloud security tool, the Orca Cloud-Native
`
`Application Protection Platform (“Orca Platform”), that brought the inventions of Mr. Avi Shua—
`
`the sole named inventor of the Asserted Patents—to market. SAC ¶¶ 6-10, n.19. In general terms,
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`Mr. Shua conceived of a revolutionary approach that analyzed virtual cloud assets using read-only
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`access with no impact on performance, and without deploying agents or network scanners. Id. ¶ 8.
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`Mr. Shua’s innovations also enabled the integration of data into unified data models, to view cloud
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`security threats in a context that was not possible before, and thus prioritize risks that endanger the
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`organization’s most critical assets. Id. Seeking to protect its inventions, Orca filed a first
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`provisional patent application on January 28, 2019, and secured the first of many related patents
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`on August 22, 2022. See id. ¶ 10. The Asserted Patents issued the following year, with the ’031
`
`and ’032 patents issuing on May 30, 2023, the ’685 patent on July 4, 2023, the ’809 patent on
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`August 15, 2023, the ’926 patent on August 29, 2023, and the ’326 patent on October 3, 2023. Id.
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`¶¶ 37, 74, 110, 145, 180, 214.
`
`Understanding the value and success of Orca’s inventions, Wiz, which was founded later
`
`in 2020 (SAC ¶ 13; D.I. 18 at 4), set out to coopt those inventions.
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`A. Wiz Copied Orca’s Business and Technology
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`Wiz was birthed from the very beginning as a counterfeit copy of Orca’s ideas—ideas
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`Wiz’s founders learned of when Mr. Shua presented Orca’s Platform to them at Microsoft in May
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`2019. SAC ¶ 14. It was at that meeting that Mr. Shua explained how cloud security would forever
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`be changed by his novel agentless cloud security platform as implemented in Orca’s cloud native
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`3
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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 9 of 26 PageID #: 1151
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`security platform. Id. Within months, the Wiz founders left their lucrative careers at Microsoft to
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`start Wiz, build a clone of Orca’s technology called the Wiz Cloud Security Platform (“Wiz CSP”),
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`and compete directly with Orca. Id. Using the information that it took from Orca and Mr. Shua,
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`Wiz was able to develop its copycat product in just months. Id. ¶ 15. Wiz’s wholesale copying of
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`Orca’s technology has been observed by industry analysts and is reflected throughout Wiz’s
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`website, product offerings, advertisements, and blog posts. Id. ¶¶ 16-19. But Wiz’s copying
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`extends far beyond just copying Orca’s technology—Wiz copied Orca’s marketing materials (see
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`id. ¶¶ 20-22), recruited Orca’s outside corporate counsel (see id. ¶ 25), and hired Orca’s former
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`employees in an attempt to acquire Orca’s confidential information relating to its product (see id.
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`¶ 26). Indeed, Wiz hired the very patent prosecution counsel that prosecuted the Asserted Patents’
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`parent applications, and subsequently filed its own patents with nearly identical figures and
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`descriptions as those found in the Asserted Patents. See id. ¶¶ 23-24.
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`B. Wiz’s Knowledge Of The Asserted Patents
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`Wiz’s widespread and continuous copying of nearly every aspect of Orca’s business and
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`technology (SAC ¶¶ 2, 13-29) evidences that Wiz monitors Orca’s patent portfolio and had
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`knowledge of the Asserted Patents at or around the time that each patent issued. Id. ¶¶ 27-28.
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`These same facts establish that Wiz acted with knowledge or reckless disregard that its actions
`
`constituted infringement of Orca’s patents. Id.1 Indeed, it would be difficult for Wiz to have
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`avoided such knowledge. Orca’s marketing materials—which Wiz copied—explained that the
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`Orca Platform was built using Orca’s “patent-pending” technology. Id. ¶¶ 10-11, 20, 27. And
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`after Orca’s first patent issued, which is a parent to the Asserted Patents, Orca announced to the
`
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`1 Evidence of Wiz’s copying of Orca’s technology also relates to other prospective issues,
`including objective indicia that the Asserted Patents are nonobvious.
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`4
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`

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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 10 of 26 PageID #: 1152
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`public and its competitors that it had “secured a patent for its agentless SideScanningTM
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`technology, providing visibility and risk coverage across the entire cloud estate.” Id. ¶ 10. Orca
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`likewise updated its website and marketing materials to state that the Orca Platform used Orca’s
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`“patented” technology. Id. ¶ 27.
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`Beyond the knowledge Wiz had from its copying and monitoring of Orca’s patent portfolio,
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`Orca also put Wiz directly on notice that the Wiz CSP and other similar products and services
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`infringe the asserted ’031 and ’032 patents when Orca filed the Original Complaint on July 12,
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`2023. D.I. 1 ¶¶ 38-52, 68-80. Orca further alleged that, in providing Wiz’s CSP to its customers,
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`Wiz has and continues to induce and contribute to infringement of the ’031 and ’032 patents. Id.
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`¶¶ 53-57, 81-85. On September 12, 2023, Orca sent Wiz a cease-and-desist letter notifying Wiz
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`of its infringement of the recently-issued ’685, ’809, ’926 patents and the pending application that
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`had already been allowed by the USPTO and would soon issue as the ’326 patent. SAC Ex. 10.
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`Orca’s letter identified each of these patents and Wiz’s infringing products, and provided
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`exemplary infringement charts showing how those products infringe at least one claim of each
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`patent. SAC Ex. 10 at 1-2, Appendices E-H. Wiz does not dispute that it received Orca’s letter
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`on September 15, 2023. D.I. 18 at 3.
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`On September 15, 2023, Orca filed its First Amended Complaint. In addition to the
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`originally asserted ’031 and ’032 patents, Orca asserted the ’685, ’809, and ’926 patents under
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`theories of direct, induced, contributory, and willful infringement. E.g., FAC ¶¶ 105-193
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`(Counts III-V regarding ’685, ’809 and ’926 patents). Less than two weeks later, the parties
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`stipulated to Orca filing a Second Amended Complaint to add claims of infringement of Orca’s
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`’326 patent. D.I. 14. On October 10, 2023, Orca filed its Second Amended Complaint asserting
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`direct, induced, contributory, and willful infringement of the Asserted Patents, now including the
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`5
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`

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`’326 patent. E.g., SAC ¶¶ 213-247 (Count VI regarding ’326 patent). At the time of that filing,
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`Wiz was aware of Orca’s patent infringement claims for as long as three months (for the ’031 and
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`’032 patents) and for no less than four weeks (for the ’685, ’809, ’926, and ’326 patents).
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`C. Wiz Continues To Knowingly Infringe The Asserted Patents And Encourage
`Others To Infringe
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`Despite monitoring Orca’s business and patent portfolio and receiving several warnings
`
`from Orca through its complaints and cease-and-desist letter, Wiz has demonstrated a continuing
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`willful, deliberate, and wrongful intent to infringe the Asserted Patents. SAC ¶¶ 66-67, 102-103,
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`138-139, 173-174, 207-208, 242-243. Since the Original Complaint and FAC were filed, for
`
`example, Wiz continues to maintain many of the same pages on its website that instruct customers
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`and potential customers on how to use the Wiz CSP to infringe the Asserted Patents. SAC ¶¶ 59,
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`65, 67, 95, 101, 103, 132, 137, 139, 167, 172, 174, 201, 206, 208, 235, 241, 243. And despite
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`express notice of the Asserted Patents and its infringement, Wiz has continued posting videos and
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`articles instructing users on how Wiz performs “agentless vulnerability scanning” in a manner
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`intended to infringe the Asserted Patents. See id. ¶¶ 60, 68, 96, 131, 166, 200, 236. Likewise, Wiz
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`has continued instructing users on how Wiz “can help organizations to identify, prioritize, and
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`remediate vulnerabilities across their cloud environments” through “[a]gentless scanning.” See id.
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`¶¶ 61, 69, 97, 105, 133, 140, 168, 175, 202, 209, 237, 244.
`
`IV.
`
`LEGAL STANDARD
`
`A plaintiff “need not ‘prove its case at the pleading stage.’” Nalco Co. v. Chem-Mod, LLC,
`
`883 F.3d 1337, 1350 (Fed. Cir. 2018) (quoting In re Bill of Lading Transmission & Processing
`
`Sys. Patent Litig., 681 F.3d 1323, 1339 (Fed. Cir. 2012)). A plaintiff need only allege in the
`
`complaint “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) (quoting Bell Atl. Corp. v. Twombly, 550
`
`6
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`

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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 12 of 26 PageID #: 1154
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`
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`U.S. 544, 570 (2007)). The issue for the Court at this stage is thus “not whether a plaintiff will
`
`ultimately prevail[,] but whether the claimant is entitled to offer evidence to support the claims.”
`
`SoftView LLC v. Apple Inc., C.A. No. 10-389-LPS, 2012 WL 3061027, at *2 (D. Del. July 26,
`
`2012) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997)). In
`
`assessing that question, “the Court must accept all well-pleaded factual allegations in the complaint
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`as true and view them in the light most favorable to the plaintiff.” APS Tech., Inc. v. Vertex
`
`Downhole, Inc., C.A. No. 19-1166-MN, 2020 WL 4346700, at *1 (D. Del. July 29, 2020).
`
`V.
`
`ARGUMENT
`
`A.
`
`The SAC Sufficiently Pled Wiz’s Pre-Suit Knowledge Of The Asserted Patents
`And Its Infringement Thereof
`
`1.
`
`The ’685, ’809, ’926, and ’326 Patents
`
`Orca provided formal pre-suit notice to Wiz of its infringement of the ’685, ’809, ’926 and
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`’3262 patents in a cease-and desist letter on September 12, 2023. The SAC alleges, and Wiz does
`
`not deny, that, for each patent, the letter (1) identified the accused Wiz product, (2) stated that the
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`product infringed a specific patent claim, and (3) explained why the accused product practices the
`
`
`2 Because the ’326 patent had not yet issued, Orca identified the ’326 patent’s underlying patent
`application in the letter. SAC ¶ 233. In an unrelated section of its opening brief relating to hiring
`Orca’s patent prosecution counsel, Wiz argues that knowledge of a patent cannot be inferred
`through knowledge of a patent application. D.I. 18 at 10 (citing cases). The cases Wiz cites are
`inapposite because the patent applications at issue in those cases either did not lead to issuance of
`a patent-in-suit or did not issue until months or years after the notice letter. Here, Orca notified
`Wiz that the USPTO had already issued a “Notice of Allowance” for the application, provided Wiz
`with the language of the allowed claims, and explained that Orca had paid the issuance fee. SAC,
`Ex. 10 at 1 n.1-2. This put Wiz on notice of the ’326 patent. See Nat’l Presto Indus. v. West Bend
`Co., 76 F.3d 1185, 1193 (Fed. Cir. 1996) (affirming willful infringement finding where suit was
`filed on the same day the patent issued because “[the defendant] knew exactly when [the
`plaintiff’s] patent came into existence, and indeed had several months’ advance notice”); Malibu
`Boats, LLC v. MasterCraft Boat Co., LLC, No. 3:16-CV-82-TAV-HBG, 2016 WL 8286158, at *4
`(E.D. Tenn. Oct. 28, 2016) (denying motion to dismiss willful infringement based on knowledge
`of patent from its pre-issuance Notice of Allowance).
`
`7
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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 13 of 26 PageID #: 1155
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`
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`claims’ limitations. SAC ¶¶ 129, 132, 134, 138, 164, 167, 169, 173, 198, 201, 203, 207, 233, 235,
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`238, 241, 242; SAC Ex. 10 at 1-2, Appendices E-H. Based on these allegations, it is reasonable
`
`to infer that Wiz “did then know of its infringement thereafter” for purposes of willful and indirect
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`infringement. Tonal Sys., Inc. v. ICON Health & Fitness, Inc., C.A. No. 20-1197-LPS, 2021 WL
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`1785072, at *4 (D. Del. May 5, 2021) (denying motion to dismiss willful and indirect infringement
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`in view of notice letter sent two weeks before filing suit), report and recommendation adopted,
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`2021 WL 5860783 (D. Del. Aug. 12, 2021).
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`Wiz nevertheless contends that Orca’s pre-suit letter did not provide sufficient time for
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`Wiz to be a willful and indirect infringer because Orca filed suit on the patents three days later.
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`See D.I. 18 at 12-13. Wiz is wrong for four reasons.
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`First, Wiz’s argument that Orca waited “just three days” before filing suit is not true with
`
`respect to the ’326 patent. Orca first asserted the ’326 patent in the SAC on October 10, 2023,
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`meaning Wiz had four weeks from the September 12 cease-and-desist letter to address its ongoing
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`infringement. SAC ¶¶ 213-247; see also D.I. 14 (stipulation permitting Orca to add claims of
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`infringement of the ’326 patent on or before October 10, 2023). Yet, with nearly a month to act,
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`Wiz did nothing to change its product, maintained the same web pages, and issued the same
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`instructions for customers on how to use the Wiz CSP to infringe the ’326 patent. SAC ¶ 235.
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`Worse, after receiving Orca’s letter, Wiz published an article specifically instructing users how
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`Wiz’s products can be used to perform “[a]gentless scanning,” “[c]ontinuous scanning,” “[d]eep
`
`contextual assessments,” and “[r]isk-based prioritization.” SAC ¶ 237. As alleged in the SAC,
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`that article instructs customers on use of Wiz’s CSP in a manner intended to infringe at least
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`claim 1 of the ’326 patent. Id. These allegations together plead sufficient plausible facts to support
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`a finding that Wiz had pre-suit knowledge of the ’326 patent and its infringement thereof.
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`8
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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 14 of 26 PageID #: 1156
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`Second, with respect to the asserted ’685, ’809, and ’926 patents, Wiz ignores the four
`
`weeks that passed between Orca’s cease-and-desist letter and the SAC, focusing instead on the
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`three days between that letter and the FAC. But, even if one ignores that the FAC was not the last
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`pleading in this case, Wiz does not identify any authority establishing a bright line rule that three
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`days is insufficient notice for indirect and willful infringement. Cf. D.I. 18 at 13 (citing cases
`
`finding one day insufficient). To the contrary, willful and indirect infringement are analyzed based
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`on the totality of the circumstances. See WCM Indus., Inc. v. IPS Corp., 721 F. App’x 959, 970
`
`(Fed. Cir. 2018). Here, three days was sufficient in light of Wiz’s prior knowledge and copying
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`of Orca’s technology and patents. See Corephotonics, Ltd. v. Apple, Inc., No. 17-cv-06457-LHK,
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`2018 WL 4772340, at *7 (N.D. Cal. Oct. 1, 2018) (finding plaintiffs email sent “six days before
`
`litigation suffices to allege Apple’s knowledge of the Asserted Patents” where there was prior
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`knowledge of the plaintiff’s technology and patents).
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`Third, Wiz’s conduct establishes that Wiz’s infringing acts would not have changed with
`
`additional time. As pled in the SAC, Orca first asserted the ’031 and ’032 patents, which are in
`
`the same patent family as the ’685, ’806 and ’926 patents, in the Original Complaint filed July 12,
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`2023. E.g., SAC ¶¶ 57, 93; see D.I. 18 at 3, 12 (acknowledging that Asserted Patents are all in the
`
`“same family”). Yet in the three months between the Original Complaint and SAC, Wiz did
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`nothing to remediate its infringement: it did not change its products and it maintained the same
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`pages on its website instructing customers and potential customers on how to use the Wiz CSP to
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`infringe the ’031 and ’032 patents. SAC ¶¶ 59, 65, 67, 95, 101, 103. Indeed, the SAC identifies a
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`video Wiz posted after the filing of the Original Complaint instructing users on how to use Wiz’s
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`platform in a manner that infringes those patents, including highlighting specific language used in
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`that video. Id. ¶¶ 60, 68. Wiz’s months-long knowing infringement of the related ’031 and ’032
`
`9
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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 15 of 26 PageID #: 1157
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`
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`patents makes it reasonable to infer that Wiz’s pre-suit infringement of the ’685, ’809, and ’926
`
`patents, and its encouragement to others to do the same, would have continued even if notice had
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`been provided more than three days in advance. See Cleveland Med. Devices Inc. v. ResMed, Inc.,
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`C.A. No. 22-794-GBW, 2023 WL 6389628, at *4 (D. Del. Oct. 2, 2023) (“alleged knowledge of
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`patent family members and related patents, along with other allegations, can be sufficient to
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`overcome a motion to dismiss”); see also D.I. 18 at 13 (arguing the ’685, ’809, and ’926 patents
`
`are directed to “essentially the same accused conduct” as for the ’031 and ’032 patents).
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`Finally, as further pled in the SAC, on information and belief, Wiz was aware of the ’685,
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`’809, and ’926 patents based on Orca’s virtual marking and Wiz’s monitoring of Orca’s patent
`
`portfolio. This alone is sufficient to defeat Wiz’s motion. See id.; SAC ¶¶ 10-11, 27-28, 129, 134,
`
`138, 164, 169, 173, 198, 203, 207; SEB S.A. v. Montgomery Ward & Co., Inc., 594 F.3d 1360,
`
`1378 (Fed. Cir. 2010), aff’d sub nom. Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754 (2011)
`
`(acknowledging that patentee may provide constructive notice of knowledge through marking
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`products with the asserted patent numbers). And here again, Wiz continued its knowing
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`infringement of the ’685, ’809, and ’926 patents in the four weeks following Orca’s cease-and-
`
`desist letter and the filing of the FAC. SAC ¶¶ 132-33, 137, 139-40, 167-68, 172, 174-75, 201-
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`02, 206, 208-09.
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`Taken together, the SAC amply satisfies the pleading standards to allege that Wiz had pre-
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`suit knowledge of the ’326, ’685, ’809, and ’926 patents and its infringement thereof to support
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`Orca’s claims for willful and indirect infringement.
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`2.
`
`The ’031 and ’032 Patents
`
`The SAC also plausibly alleges that Wiz had the requisite pre-suit knowledge of the ’031
`
`and ’032 patents and its infringement thereof as a result of monitoring Orca’s patent portfolio and
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`copying Orca’s patent-pending technology. SAC ¶¶ 27, 57, 62, 66, 93, 98, 102. Those allegations
`
`10
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`

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`Case 1:23-cv-00758-GBW Document 22 Filed 12/15/23 Page 16 of 26 PageID #: 1158
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`
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`are more than sufficient considering Wiz’s extensive pattern of copying Orca. SAC ¶¶ 28, 57, 62,
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`66, 93, 98, 102, 129, 134, 138, 164, 169, 173, 198, 203, 207. For example, the SAC details how
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`Wiz launched its company and platform with identical features to Orca’s platform within months
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`of attending Orca’s presentation of its technology (id. ¶¶ 14-19)3; copied Orca’s patent prosecution
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`strategy including recruiting Orca’s former patent prosecution counsel—the same counsel who
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`filed the Asserted Patents’ parent patent applications—to prosecute Wiz’s patents with nearly
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`identical figures and descriptions (id. ¶¶ 23-24, 27); recruited Orca’s outside corporate counsel and
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`former Orca employees in an attempt to obtain and copy confidential Orca information (id. ¶¶ 25-
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`26); and copied Orca’s marketing materials describing Orca’s “patent-pending” technology (id.
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`¶¶ 20-22).
`
`Wiz’s motion nowhere denies that it monitors Orca’s patent portfolio and