`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`AMIT AGARWAL,
`
`Plaintiff,
`
`
`
`v.
`
`
`TOPGOLF INTERNATIONAL, INC.,
`
`
`
` Defendant.
`________________________________/
`
`
`ORDER
`
`
`
`
`Case No. 8:16-cv-2641-T-33JSS
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`
`
`
`
`
`
`This matter comes before the Court pursuant to Defendant
`
`Topgolf International, Inc.’s Motion to Dismiss, filed on
`
`November 7, 2016. (Doc. # 27). Plaintiff Amit Agarwal filed
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`a response in opposition on November 11, 2016. (Doc. # 28).
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`For the reasons that follow, the Motion is denied.
`
`I. Background
`
`
`
`Agarwal is an investor located in Wimauma, Florida, and
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`the current owner of U.S. Patent 5,370,389 (the ‘389 patent),
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`for a “Golf Range Method and Apparatus,” which infuses golf
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`ranges with technology. (Doc. # 1 at ¶¶ 2, 5; Doc. # 1-1 at
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`1). Specifically, golf balls are marked with identifying
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`features that indicate from which of a plurality of golfing
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`tees they are hit. (Doc. # 1 at ¶ 2). There are a plurality
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`1
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 2 of 14 PageID 384
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`of target greens located on each fairway toward which players
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`aim. (Id.). When the player strikes a golf ball at the target
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`greens on the fairway, the golf ball hits the sloped rear
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`portion of the target green and slides down into a receptacle
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`hole. (Id.). A sensor in each receptacle hole identifies the
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`player who hit the golf ball and assigns him points. (Id.).
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`The sensors provide a different score value for different
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`target greens. (Id.; Doc. # 1-1 at 1). In short, “[t]he ‘389
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`patent covers the end-to-end process relating to playing
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`point-scoring games at high-tech golf courses.” (Doc. # 1 at
`
`¶ 2).
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`Topgolf “operates several high-tech golf driving ranges
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`throughout the country.”(Id. at ¶ 6). Agarwal alleges that
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`Topgolf’s driving ranges in Dallas, Texas, Allen, Texas, and
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`Alexandria, Virginia infringed on his patent from September
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`14, 2010, until September 25, 2012, when the patent expired.
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`(Id. at 1). According to Agarwal, Topgolf infringed by
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`providing point-scoring games using golf balls with radio-
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`frequency identification (RFID) chips. (Id. at ¶ 3). Players
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`hit these golf balls toward a plurality of target greens,
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`where the golf balls slide down a sloped surface to be
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`captured in receptacle holes with RFID sensors, which track
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`the players’ scores. (Id. at ¶¶ 24-32, 60-62). Agarwal
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`
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`2
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 3 of 14 PageID 385
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`identifies the target trench at each of the three driving
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`ranges as the “plurality of target greens,” that allegedly
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`infringes the ‘389 patent. (Id. at ¶¶ 24-26). The single
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`target trench at each driving range is comprised of separate
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`compartments, with each compartment having its own receptacle
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`hole. (Id. at ¶¶ 24-26, 30-32). Agarwal claims that Topgolf
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`knowingly infringed his ‘389 patent and that approximately
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`half of Topgolf’s own patents for high-tech golf games cite
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`the ‘389 patent. (Id. at ¶ 10).
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`
`
`Agarwal filed the present action in this Court on
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`September 14, 2016, alleging willful and direct infringement
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`of claims 1 and 6 of the ‘389 patent in violation of 35 U.S.C.
`
`§ 271(a). (Doc. # 1). On November 7, 2016, before any claim
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`construction proceedings, Topgolf filed its Motion to
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`Dismiss. (Doc. # 27). Agarwal responded on November 11, 2016.
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`(Doc. # 28). The Motion is ripe for review.
`
`II. Legal Standard
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`On a motion to dismiss, this Court accepts as true all
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`the allegations in the complaint and construes them in the
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`light most favorable to the plaintiff. Jackson v. Bellsouth
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`Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
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`this Court favors the plaintiff with all reasonable
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`inferences from the allegations in the complaint. Stephens v.
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`3
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 4 of 14 PageID 386
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`Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
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`Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
`
`complaint and all reasonable inferences therefrom are taken
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`as true.”). However,
`
`[w]hile a complaint attacked by a Rule 12(b)(6)
`motion to dismiss does not need detailed factual
`allegations, a plaintiff’s obligation to provide
`the grounds of his entitlement to relief requires
`more than labels and conclusions, and a formulaic
`recitation of the elements of a cause of action
`will not do. Factual allegations must be enough to
`raise a right to relief above the speculative
`level.
`
`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
`
`citations omitted). Courts are not “bound to accept as true
`
`a legal conclusion couched as a factual allegation.” Papasan
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`v. Allain, 478 U.S. 265, 286 (1986).
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`Furthermore, “[t]he scope of review must be limited to
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`the four corners of the complaint.” St. George v. Pinellas
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`Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). But a “court may
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`consider a document attached to a motion to dismiss without
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`converting the motion into one for summary judgment if the
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`attached document is (1) central to the plaintiff’s claim and
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`(2) undisputed.” Day v. Taylor, 400 F.3d 1272, 1276 (11th
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`Cir. 2005)(internal citation omitted).
`
`III. Analysis
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`
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`In patent infringement cases,
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`4
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 5 of 14 PageID 387
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`the Federal Circuit has held that a party claiming
`patent infringement only needs to: (1) allege
`ownership of the asserted patent; (2) name each
`individual defendant; (3) cite the patent that is
`allegedly infringed; (4) describe the means by
`which the defendants allegedly infringe; and (5)
`point to the specific sections of the patent law
`invoked.
`
`Mesh Comm, LLC v. EKA Sys., Inc., No. 8:09-cv-1064-T-33TGW,
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`2010 WL 750337, at *2 (M.D. Fla. Mar. 4, 2010)(citing
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`Phonometrics, Inc. v. Hosp. Franchise Sys., 203 F.3d 790, 794
`
`(Fed. Cir. 2000)). In pleading these elements, a plaintiff
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`must demonstrate a plausible claim for relief as required by
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`Federal Rule of Civil Procedure 8. See Nexeon Ltd. v.
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`Eaglepicher Techs., LLC, No. 1:15-CV-955-RGA, 2016 WL
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`6093471, at *1 (D. Del. Oct. 18, 2016)(noting that “patent
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`infringement allegations are evaluated under the plausibility
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`standard of [Twombly]”).
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`The parties do not dispute that Agarwal has alleged
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`ownership of and cited the ‘389 patent, named Topgolf as the
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`sole defendant, and pointed to the section of the patent law
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`that was allegedly violated. Nevertheless, Topgolf argues
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`that Agarwal’s claim for patent infringement is implausible
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`on its face and should be dismissed without proceeding to
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`claim construction. (Doc. # 27 at 1). According to Topgolf,
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`Agarwal has not plausibly alleged that Topgolf maintained any
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`5
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 6 of 14 PageID 388
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`facilities or engaged in any conduct that could plausibly
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`infringe the ‘389 patent.
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`The parties’ disagreement concerns the proper
`
`interpretation of the phrase “plurality of target greens”
`
`within the patent. Topgolf asserts that Agarwal has not
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`plausibly alleged, and cannot allege, that Topgolf’s
`
`facilities maintained a “plurality of target greens.” (Id. at
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`2, 15). Rather, according to Topgolf, the Complaint only
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`specifies the existence of a single target trench into which
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`golf balls are hit, which does not qualify as a “plurality of
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`target greens” as the term is typically understood. (Id. at
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`2, 16).
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`“[T]he words of a claim are generally given their
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`ordinary and customary meaning.” Phillips v. AWH Corp., 415
`
`F.3d 1303, 1312 (Fed. Cir. 2005). Topgolf argues that the
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`term “green” within the ‘389 patent refers to a circular or
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`elliptical hole marked by a flag, which it asserts is how the
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`term is generally understood in golf. (Doc. # 27 at 7). In
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`support, Topgolf cites to sections of its own website that
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`describe the layout of its driving ranges and other target
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`types, including circular targets marked by flags that
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`Agarwal does not identify as infringing the ‘389 patent. (Doc.
`
`## 27 at 2, 4). Topgolf also cites to a Washington Post
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`
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`6
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 7 of 14 PageID 389
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`article to establish that “[n]eutral third parties have
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`recognized the difference between the circular targets [at
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`Topgolf’s driving ranges that Agarwal does not allege
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`infringe his patent] that may look like ‘greens’ and the
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`‘trench target,’ which is unique and not like a ‘green.’”
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`(Id. at 18). However, the Court will not consider Topgolf’s
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`website and the news articles attached to the Motion because
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`they are outside the four corners of the Complaint and are
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`not central to Agarwal’s claim.
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`Additionally, while “green” may typically have one
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`meaning in traditional golf, it is not clear on the record
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`before the Court whether “green” may have carried a different
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`meaning for the patentee. Cf. Phillips, 415 F.3d at 1314,
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`1316 (noting that “patentees frequently use terms
`
`idiosyncratically” and that “our cases recognize that the
`
`specification may reveal a special definition given to a claim
`
`term by the patentee that differs from the meaning it would
`
`otherwise possess,” in which case “the inventor’s
`
`lexicography governs”). The ‘389 patent attached to the
`
`Complaint states that “[e]xisting driving ranges often have
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`small greens that include target flags at which to aim.” (Doc.
`
`# 1-1 at 1:48-49). This description of a “green” sounds like
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`the construction of the term urged by Topgolf; however, the
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`7
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 8 of 14 PageID 390
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`patent merely acknowledges that the “greens” at many driving
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`ranges fit that description. Similarly, while the other
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`patents cited in the ‘389 patent identify “greens” as
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`“generally circular or oval in shape” and marked by a flag,
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`the ‘389 patent does not state that the term “green” is
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`limited to include only circular greens with target flags,
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`and Topgolf has not cited any case law construing the term
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`“green” in that narrow way. (Doc. # 27-4 at 2:41-42, 64).
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`While the drawings within the patent display circular
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`holes marked by flags, the patent specifies that these
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`drawings should “be regarded as illustrative in nature and
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`not as restrictive.” (Doc. # 1-1 at 3:2-9). The drawings show
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`“a preferred embodiment” of the invention but the invention
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`is “capable of other different embodiments.” (Id.); see also
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`Phillips, 415 F.3d at 1323 (“[W]e have expressly rejected the
`
`contention that if a patent describes only a single
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`embodiment, the claims of the patent must be construed as
`
`being limited to that embodiment.” (citing Gemstar-TV Guide
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`Int’l, Inc. v. Int’l Trade Comm’n, 383 F.3d 1352, 1366 (Fed.
`
`Cir. 2004))). Thus, at the motion to dismiss stage, the
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`drawings and citations to previous patents within the ‘389
`
`patent do not render Agarwal’s interpretation of the term
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`“plurality of target greens” implausible.
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`8
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 9 of 14 PageID 391
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`Next, Topgolf notes that each of the purportedly
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`infringing driving ranges had only one target trench. Because
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`there is only one target trench, Topgolf contends that the
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`trench cannot qualify as a “plurality of target greens.” (Doc.
`
`# 27 at 20); see also Cheese Sys., Inc. v. Tetra Pak Cheese
`
`and Powder Sys., Inc., 725 F.3d 1341, 1348 (Fed. Cir.
`
`2013)(“The district court correctly assessed that a plurality
`
`simply means two or more.”). However, the Complaint
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`identifies — and Topgolf concedes — that each target trench
`
`is divided into separate compartments with separate
`
`receptacle holes and different point values. (Doc. # 1 at 24-
`
`26, 30-32; Doc. # 27 at 4, 21). Thus, Agarwal’s interpretation
`
`of the individual compartments of the target trench as
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`constituting a “plurality of target greens” is plausible. See
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`Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., No. 2:15-
`
`CV-1202-WCB, 2016 WL 1643315, at *3 (E.D. Tex. Apr. 26,
`
`2016)(denying motion to dismiss direct infringement claim
`
`before claim construction because “[g]iven the inferences
`
`that must be credited at this stage in the case, [Plaintiff’s
`
`interpretation of the term ‘administer’ as used in the claims
`
`is] not a wholly implausible characterization”).
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`
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`Furthermore, a determination that Agarwal has not stated
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`a plausible claim of infringement against Topgolf because
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`9
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 10 of 14 PageID 392
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`Topgolf’s facilities did not contain a “plurality of target
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`greens” would be premature. Whether Topgolf infringed
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`Agarwal’s patent by maintaining a “plurality of target
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`greens” is a disputed fact that should not be resolved on a
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`Rule 12(b)(6) motion. Cf. Hand Held Prods., Inc. v.
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`Amazon.com, Inc., No. 12-CV-768-RGA-MPT, 2013 WL 507149, at
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`*7 (D. Del. Feb. 6, 2013)(“Defendants attempt to
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`surreptitiously have the court conduct claim construction as
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`part of its analysis under Rule 12(b)(6), contrary to the
`
`purpose of the rule. The analysis required is not to resolve
`
`disputed facts, nor decide the merits; rather, the
`
`examination is limited to testing the sufficiency of the
`
`complaint.”).
`
`Such a determination would require the Court to rule on
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`claim construction issues before any claim construction has
`
`occurred. As the Federal Circuit wrote,
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`We agree with R+L that, to the extent the district
`court based its assessment of the “reasonableness”
`of a given inference of infringement on a narrow
`construction of the patent’s claims, claim
`construction at the pleading stage — with no claim
`construction
`processes
`undertaken
`—
`was
`inappropriate. We afford the claims their broadest
`possible construction at this stage of the
`proceedings.
`
`In re Bill of Lading Transmission and Processing Sys. Patent
`
`Litigation, 681 F.3d 1323, 1343 n.13 (Fed. Cir.
`
`
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`10
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 11 of 14 PageID 393
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`2012)(vacating in part Rule 12(b)(6) dismissal of inducing
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`infringement claims).
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`Therefore, the Court will not engage in impromptu claim
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`construction of the term “plurality of target greens” without
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`the benefit of claim construction briefing and a hearing. See
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`Walker Digital, LLC v. Facebook, Inc., 852 F. Supp. 2d 559,
`
`563 (D. Del. 2012)(“The court is not prepared to engage in a
`
`claim construction exercise at this stage of the proceedings,
`
`with no context whatsoever provided by discovery or a motion
`
`practice.”); see also Tech. Innovations, LLC v. Amazon.com,
`
`No. 11-690-SLR, 2012 WL 1441300, at *2 (D. Del. Apr. 25,
`
`2012)(denying motion to dismiss and refusing to construe “the
`
`claim terms ‘book’ and ‘printed information,’ at this stage
`
`of the proceedings, with no context provided by discovery or
`
`a motion practice”).
`
`Topgolf highlights two cases in which the district court
`
`dismissed patent infringement claims with prejudice before
`
`claim construction. But the Court finds those cases
`
`distinguishable. In Anchor Sales v. Richloom Fabrics, No. 15-
`
`CV-4442(RA), 2016 WL 4224069 (S.D.N.Y. Aug. 9, 2016), the
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`court dismissed the patentee’s claim because the patent
`
`specified that a type of sliding bead was “the essence of
`
`[the] invention,” but the allegedly infringing products did
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`11
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 12 of 14 PageID 394
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`not include such a sliding bead. Id. at *6. In contrast, the
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`‘389 patent does not specify a required shape for a “green”
`
`or whether it must be marked by a flag. Furthermore, the
`
`patent stipulates that its drawings, which depict circular
`
`greens with flags, illustrate merely one embodiment of the
`
`invention. (Doc. # 1-1 at 3:2-9).
`
`Additionally, in Atlas IP, LLC v. Exelon Corp., No. 15-
`
`C-10746, 2016 WL 2866134 (N.D. Il. May 17, 2016), the court
`
`stated that claim construction can be engaged in at the motion
`
`to dismiss stage “at least when it is based on facts alleged
`
`in or reasonably inferable from the complaint” because
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`“determinations grounded solely on the claim language, the
`
`specification and the prosecution history (as opposed to the
`
`extrinsic record) are purely legal in nature.” Id. at *4.
`
`But, here, Topgolf includes references to external sources,
`
`including Topgolf’s website and a news article, in support of
`
`its argument that the term “green” should be interpreted to
`
`exclude Topgolf’s target trench. (Doc. # 27 at 2-4). Also,
`
`Topgolf has cited no case law construing the term “green” or
`
`supporting its argument that the single target trench,
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`constituted by numerous separate compartments, could not
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`plausibly qualify as a “plurality” of different targets.
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`12
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 13 of 14 PageID 395
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`
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`Thus, Topgolf’s contention that its target trench does
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`not qualify as a “plurality of target greens” is an argument
`
`more appropriate for claim construction. Erfindergemeinschaft
`
`Uropep GbR, 2016 WL 1643315, at *4 (“It may be that the
`
`proceedings will ultimately determine that the term
`
`‘administering’ does not reach conduct such as the conduct
`
`alleged in the complaint . . . . Those questions, however,
`
`are properly left for claim construction, summary judgment,
`
`or trial.”).
`
`At this stage, when Agarwal’s claims are given their
`
`broadest construction, the Complaint states a plausible claim
`
`for infringement and sufficiently puts Topgolf on notice of
`
`the alleged infringing conduct. See Bel Fuse Inc. v. Molex
`
`Inc., 27 F. Supp. 3d 557, 563 (D.N.J. 2014)(“Here, there has
`
`been no claim construction and Plaintiff’s allegations are
`
`sufficient to put the sole Defendant on notice as to the
`
`allegedly infringing conduct.”). Therefore, Topgolf’s Motion
`
`is denied.
`
`Accordingly, it is
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`
`
`
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`ORDERED, ADJUDGED, and DECREED:
`
`Defendant Topgolf International, Inc.’s Motion to
`
`Dismiss (Doc. # 27) is DENIED.
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`13
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`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 14 of 14 PageID 396
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`DONE and ORDERED in Chambers in Tampa, Florida, this 4th
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`day of January, 2017.
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`14
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