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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`OPENTV, INC.,
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` Plaintiff,
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`v.
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`PINTEREST, INC.,
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` Defendant.
`
`Court No. 1:24-cv-01301-JCG
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`OPINION AND ORDER
`Plaintiff OpenTV, Inc. (“Plaintiff” or “OpenTV”) filed this case against
`Defendant Pinterest, Inc. (“Defendant” or “Pinterest”) alleging infringement of
`U.S. Patent Numbers 10,419,817 (“’817 Patent”), 9,699,503 (“’503 Patent”),
`7,669,212 (“’212 Patent”), and 7,055,169 (“’169 Patent”) (collectively, “Patents”).
`Pl.’s First Am. Compl. Patent Infringement (“Am. Compl.”) (D.I. 16); see U.S.
`Patent Number 10,419,817 (“’817 Patent”) (D.I. 16-1); Patent Number 9,699,503
`(“’503 Patent”) (D.I. 16-2); Patent Number 7,669,212 (“’212 Patent”) (D.I. 16-3);
`Patent Number 7,055,169 (“’169 Patent”) (D.I. 16-4). Defendant filed Pinterest’s
`Motion to Dismiss. Def.’s MTD (“Defendant’s First Motion to Dismiss” or
`“Def.’s First MTD”) (D.I. 11); Def.’s Opening Br. Supp. MTD (“Def.’s First MTD
`Br.”) (D.I. 12). The Parties stipulated to Defendant’s withdrawal of Pinterest’s
`First Motion to Dismiss. Stipulation & Proposed Order Withdraw MTD & Extend
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`Time (“Stipulation”) (D.I. 18). Defendant filed Pinterest’s Partial Motion to
`Dismiss. Def.’s Partial MTD (“Defendant’s Second Motion to Dismiss” or “Def.’s
`Second MTD”) (D.I. 19); Def.’s Opening Br. Supp MTD (“Def.’s Br.”) (D.I. 20).
`Plaintiff filed OpenTV’s Answering Brief in Opposition to Pinterest’s Partial
`Motion to Dismiss. Pl.’s Answering Br. Opp’n Def.’s MTD (“Pl.’s Resp.”) (D.I.
`24). Defendant filed Pinterest’s Reply in Support of its Motion to Dismiss. Def.’s
`Reply Supp. MTD (“Def.’s Reply”) (D.I. 25).
`For the reasons discussed below, Pinterest’s Second Motion to Dismiss is
`denied without prejudice.
`BACKGROUND
`OpenTV is a Delaware corporation that develops television and internet
`content delivery technologies and complementary technologies, such as “personal
`video recording [], video-on-demand [], television home networking, advanced
`advertising methodologies, and tools for recommending content to viewers.” Am.
`Compl. ¶¶ 23–25. The technologies offered by OpenTV include “software that
`enables intuitive and personalized viewing experiences for consumers.” Id. ¶ 25.
`OpenTV is the owner of all right, title, and interest in the Patents. Id. ¶ 96.
`Pinterest, Inc. is a Delaware corporation that acts as a “visual discovery
`engine for finding ideas.” Id. ¶¶ 33–34. Pinterest is a platform that individuals can
`access via website or phone application that allows users to save and organize their
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`ideas using images called “Pins.” Id. ¶¶ 34–35. Individuals create boards for
`topics of interest. Id. ¶ 35. Pinterest developed a native video platform in or
`around 2016. Id. ¶ 36. In September 2020, Pinterest launched “story pins,” that
`allowed for the use of videos. Id. ¶ 37. In or around the following year, Pinterest
`expanded the tools available to users and introduced video-first features. Id. ¶ 38.
`OpenTV filed a complaint in November 2024, alleging infringement of the
`Patents and seeking monetary damages and injunctive relief. Compl. (D.I. 1).
`Pinterest filed a motion to dismiss OpenTV’s Complaint, arguing that OpenTV
`failed to plausibly plead infringement of the Patents. Def.’s First MTD; Def.’s
`First MTD Br. OpenTV filed an Amended Complaint on February 18, 2025. Am.
`Compl. Pinterest withdrew its First Motion to Dismiss and filed its Second Motion
`to Dismiss on March 18, 2025, arguing that the ’817 Patent, ’503 Patent, and ’212
`Patent are ineligible for patent protection under 35 U.S.C. § 101. Stipulation;
`Def.’s Second MTD; Def.’s Br. OpenTV filed a response opposing Defendant’s
`Second Motion to Dismiss on April 15, 2025. Pl.’s Resp. Pinterest filed a Reply
`in Support of its Second Motion to Dismiss on May 6, 2025. Def.’s Reply. The
`Court held oral argument on Pinterest’s Second Motion to Dismiss on July 7, 2025.
`LEGAL STANDARD
`Federal Rule of Civil Procedure 8(a) requires that pleadings contain a short
`and plain statement of the claim showing that the pleader is entitled to relief. Fed.
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`R. Civ. P. 8(a)(2). If pleadings fail to state a claim, in whole or in part, on which a
`court may grant relief, a defendant may seek to dismiss a complaint under Federal
`Rule of Civil Procedure 12(b)(6). Fed. R. Civ. P. 12(b)(6). “To survive a motion
`to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
`‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
`662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
`“A claim has facial plausibility when the plaintiff pleads factual content that allows
`the court to draw the reasonable inference that the defendant is liable for the
`misconduct alleged.” Id. Plausibility requires “more than a sheer possibility that a
`defendant has acted unlawfully.” Id. In considering a motion to dismiss, the Court
`must assume the factual allegations contained in the complaint to be true and draw
`all reasonable inferences in favor of the non-moving party. Twombly, 550 U.S. at
`555–56. However, “[t]hreadbare recitals of the elements of a cause of action,
`supported by mere conclusory statements, do not suffice” to state a claim. Iqbal,
`556 U.S. at 678.
`Once a motion to dismiss is filed, the filing party is generally precluded
`from filing another motion to dismiss raising different defenses that were available
`to the filing party at the time the earlier motion was filed. Fed. R. Civ. P. 12(g)(2),
`(h)(1)(A).
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`DISCUSSION
`Pinterest moves to dismiss Counts I, II, and III of OpenTV’s Complaint,
`alleging infringement of the ’503 Patent, ’817 Patent, and ’212, respectively, and
`arguing that the three patents are ineligible for patent protection under 35 U.S.C.
`§ 101. Def.’s Second MTD; Def.’s Br. OpenTV argues that granting Pinterest’s
`Second Motion to Dismiss would be legal error because Pinterest waived its ability
`to challenge patent eligibility by not raising the defense in its earlier motion to
`dismiss. Pl.’s Resp. at 6–8. Pinterest counters that denying the motion for waiver
`would be impractical and inefficient. Def.’s Reply at 1–2.
`Federal Rule of Civil Procedure 12(g)(2) provides: “[e]xcept as provided in
`Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make
`another motion under this rule raising a defense or objection that was available to
`the party but omitted from its earlier motion.” Fed. R. Civ. P. 12(g)(2). Pinterest’s
`First Motion to Dismiss was expressly brought under Rule 12 and argued only that
`OpenTV failed to plausibly plead any theory of infringement of the Patents. Def.’s
`First MTD Br. The motion did not raise the issue of patent eligibility under § 101.
`See id. Because Defendant’s First Motion to Dismiss failed to raise patent
`eligibility, the defense can only be raised in the Second Motion to Dismiss if the
`motion qualifies for an exception under Rule 12(h)(2) or (3). Fed. R. Civ. P.
`12(g)(2).
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`Under Rule 12(h)(2), a successive motion to dismiss for “failure to state a
`claim upon which relief can be granted . . . may be raised: (A) in any pleadings
`allowed or ordered under Rule 7(a); (B) by a motion [for judgment on the
`pleadings] under Rule 12(c); or (C) at trial.” Fed. R. Civ. P. 12(h)(2). Pinterest’s
`Second Motion to Dismiss does not qualify as a pleading under Federal Rule of
`Civil Procedure 7 and the Court is not inclined to convert the motion into a motion
`for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).
`The remaining exception under Rule 12(h)(3) permits the Court to dismiss a claim
`for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). The Court’s
`subject matter jurisdiction is not in question in this case.
`The Court concludes that the available exceptions are not applicable in this
`case. That OpenTV subsequently filed an Amended Complaint also does not open
`the door for Pinterest to revisit arguments that it neglected to advance earlier. See
`Sunoco Partners Mktg & Terminals L.P. v. Powder Springs Logistics, LLC, 2019
`WL 8641303, at *3–4 (D. Del. Aug. 7, 2019). Because Pinterest’s Second Motion
`to Dismiss does not cite any new allegations from the Amended Complaint,
`Pinterest was in a position to challenge patent eligibility when it filed the First
`Motion to Dismiss and failed to do so.
`Pinterest argues that denying the Second Motion to Dismiss would be
`impractical and inefficient because the First Motion to Dismiss was withdrawn
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`before it was fully briefed, and Pinterest would be able to refile its motion as a
`motion for judgment on the pleadings. Def.’s Reply at 1–2. Pinterest cites the U.S.
`Court of Appeals for the Third Circuit’s (“Third Circuit Court of Appeals”) opinion
`in Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316 (3d Cir. 2015) in support of this
`argument. Id. In Leyse, the Third Circuit Court of Appeals held that the district
`court committed error in permitting a successive motion to dismiss, but declined to
`vacate the lower court’s ruling because allowing the successive filing did not
`substantially affect the parties’ rights when the motion would likely be refiled as a
`motion for judgment on the pleadings on remand, resulting in additional litigation or
`appeals. Leyse, 804 F.3d at 321–22. The Court notes that the Leyse court’s decision
`not to vacate was made in the context of an appeal and that in reaching its decision,
`the Leyse court stated:
`We emphasize that district courts should enforce Rule 12(g)(2) even if
`their failure to do so is not a ground for reversal. Although some courts
`and commentators believe that allowing successive pre-answer motions
`to dismiss avoids delay, this seems to us like short -term thinking. In
`any given case, requiring a defendant to file an answer and then a Rule
`12(c) motion will take more time than allowing it to file a successive
`pre-answer Rule 12(b)(6) motion. But over the long term, stringent
`application of Rule 12(g)(2) may motivate defendants to consolidate
`their arguments in a single pre-answer motion, especially if they know
`that the district court will not stay discovery while a post -answer Rule
`12(c) motion is pending. Granted, the logic of deterrence could also
`support enforcing Rule 12(g)(2) on appeal. The length of the appellate
`process, however, increases the costs of enforcement and suggests that
`the balance should be struck differently.
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`Id. at 322 n.5. (emphasis added). The Third Circuit Court of Appeals is clear that
`trial courts should favor application of Rule 12(g)(2), even when the interest of
`judicial efficiency might hint at the opposite approach. Considering the guidance
`of the Third Circuit Court of Appeals and the plain language of Rule 12(g)(2), the
`Court is not inclined to permit successive motions to dismiss.
` Pursuant to Rule 12(g)(2), the Court concludes that Pinterest waived its
`patent eligibility arguments. Pinterest’s Second Motion to Dismiss is denied
`without prejudice and Pinterest may refile its patent eligibility arguments in a
`different pleading allowed by Rule 12(h)(2).
`CONCLUSION
`ACCORDINGLY, IT IS HEREBY
`ORDERED that Defendant’s Partial Motion to Dismiss (D.I. 19) is denied
`without prejudice; and it is further
`ORDERED that Defendant shall file an answer or a procedurally proper
`motion in response to Plaintiff’s First Amended Complaint (D.I. 16) on or before
`August 6, 2025; and it is further
`ORDERED that Plaintiff shall file a brief in response on or before August
`20, 2025; and it is further
`ORDERED that Defendant shall file a brief in reply on or before August 27,
`2025.
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`IT IS SO ORDERED this 16th day of July, 2025.
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` /s/ Jennifer Choe-Groves
`Jennifer Choe-Groves
`U.S. District Court Judge*
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`*Judge Jennifer Choe-Groves, of the United States Court of International Trade,
`sitting by designation.
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