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Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 1 of 14 PageID 383
`
`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
`
`
`
`
`
`
`
`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
`
`a response in opposition on November 11, 2016. (Doc. # 28).
`
`For the reasons that follow, the Motion is denied.
`
`I. Background
`
`
`
`Agarwal is an investor located in Wimauma, Florida, and
`
`the current owner of U.S. Patent 5,370,389 (the ‘389 patent),
`
`for a “Golf Range Method and Apparatus,” which infuses golf
`
`ranges with technology. (Doc. # 1 at ¶¶ 2, 5; Doc. # 1-1 at
`
`1). Specifically, golf balls are marked with identifying
`
`features that indicate from which of a plurality of golfing
`
`tees they are hit. (Doc. # 1 at ¶ 2). There are a plurality
`
`
`
`1
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 2 of 14 PageID 384
`
`of target greens located on each fairway toward which players
`
`aim. (Id.). When the player strikes a golf ball at the target
`
`greens on the fairway, the golf ball hits the sloped rear
`
`portion of the target green and slides down into a receptacle
`
`hole. (Id.). A sensor in each receptacle hole identifies the
`
`player who hit the golf ball and assigns him points. (Id.).
`
`The sensors provide a different score value for different
`
`target greens. (Id.; Doc. # 1-1 at 1). In short, “[t]he ‘389
`
`patent covers the end-to-end process relating to playing
`
`point-scoring games at high-tech golf courses.” (Doc. # 1 at
`
`¶ 2).
`
`Topgolf “operates several high-tech golf driving ranges
`
`throughout the country.”(Id. at ¶ 6). Agarwal alleges that
`
`Topgolf’s driving ranges in Dallas, Texas, Allen, Texas, and
`
`Alexandria, Virginia infringed on his patent from September
`
`14, 2010, until September 25, 2012, when the patent expired.
`
`(Id. at 1). According to Agarwal, Topgolf infringed by
`
`providing point-scoring games using golf balls with radio-
`
`frequency identification (RFID) chips. (Id. at ¶ 3). Players
`
`hit these golf balls toward a plurality of target greens,
`
`where the golf balls slide down a sloped surface to be
`
`captured in receptacle holes with RFID sensors, which track
`
`the players’ scores. (Id. at ¶¶ 24-32, 60-62). Agarwal
`
`
`
`2
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 3 of 14 PageID 385
`
`identifies the target trench at each of the three driving
`
`ranges as the “plurality of target greens,” that allegedly
`
`infringes the ‘389 patent. (Id. at ¶¶ 24-26). The single
`
`target trench at each driving range is comprised of separate
`
`compartments, with each compartment having its own receptacle
`
`hole. (Id. at ¶¶ 24-26, 30-32). Agarwal claims that Topgolf
`
`knowingly infringed his ‘389 patent and that approximately
`
`half of Topgolf’s own patents for high-tech golf games cite
`
`the ‘389 patent. (Id. at ¶ 10).
`
`
`
`Agarwal filed the present action in this Court on
`
`September 14, 2016, alleging willful and direct infringement
`
`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
`
`construction proceedings, Topgolf filed its Motion to
`
`Dismiss. (Doc. # 27). Agarwal responded on November 11, 2016.
`
`(Doc. # 28). The Motion is ripe for review.
`
`II. Legal Standard
`
`On a motion to dismiss, this Court accepts as true all
`
`the allegations in the complaint and construes them in the
`
`light most favorable to the plaintiff. Jackson v. Bellsouth
`
`Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
`
`this Court favors the plaintiff with all reasonable
`
`inferences from the allegations in the complaint. Stephens v.
`
`
`
`3
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 4 of 14 PageID 386
`
`Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
`
`Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
`
`complaint and all reasonable inferences therefrom are taken
`
`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
`
`v. Allain, 478 U.S. 265, 286 (1986).
`
`Furthermore, “[t]he scope of review must be limited to
`
`the four corners of the complaint.” St. George v. Pinellas
`
`Cty., 285 F.3d 1334, 1337 (11th Cir. 2002). But a “court may
`
`consider a document attached to a motion to dismiss without
`
`converting the motion into one for summary judgment if the
`
`attached document is (1) central to the plaintiff’s claim and
`
`(2) undisputed.” Day v. Taylor, 400 F.3d 1272, 1276 (11th
`
`Cir. 2005)(internal citation omitted).
`
`III. Analysis
`
`
`
`In patent infringement cases,
`
`
`
`4
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 5 of 14 PageID 387
`
`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,
`
`2010 WL 750337, at *2 (M.D. Fla. Mar. 4, 2010)(citing
`
`Phonometrics, Inc. v. Hosp. Franchise Sys., 203 F.3d 790, 794
`
`(Fed. Cir. 2000)). In pleading these elements, a plaintiff
`
`must demonstrate a plausible claim for relief as required by
`
`Federal Rule of Civil Procedure 8. See Nexeon Ltd. v.
`
`Eaglepicher Techs., LLC, No. 1:15-CV-955-RGA, 2016 WL
`
`6093471, at *1 (D. Del. Oct. 18, 2016)(noting that “patent
`
`infringement allegations are evaluated under the plausibility
`
`standard of [Twombly]”).
`
`The parties do not dispute that Agarwal has alleged
`
`ownership of and cited the ‘389 patent, named Topgolf as the
`
`sole defendant, and pointed to the section of the patent law
`
`that was allegedly violated. Nevertheless, Topgolf argues
`
`that Agarwal’s claim for patent infringement is implausible
`
`on its face and should be dismissed without proceeding to
`
`claim construction. (Doc. # 27 at 1). According to Topgolf,
`
`Agarwal has not plausibly alleged that Topgolf maintained any
`
`
`
`5
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 6 of 14 PageID 388
`
`facilities or engaged in any conduct that could plausibly
`
`infringe the ‘389 patent.
`
`The parties’ disagreement concerns the proper
`
`interpretation of the phrase “plurality of target greens”
`
`within the patent. Topgolf asserts that Agarwal has not
`
`plausibly alleged, and cannot allege, that Topgolf’s
`
`facilities maintained a “plurality of target greens.” (Id. at
`
`2, 15). Rather, according to Topgolf, the Complaint only
`
`specifies the existence of a single target trench into which
`
`golf balls are hit, which does not qualify as a “plurality of
`
`target greens” as the term is typically understood. (Id. at
`
`2, 16).
`
`“[T]he words of a claim are generally given their
`
`ordinary and customary meaning.” Phillips v. AWH Corp., 415
`
`F.3d 1303, 1312 (Fed. Cir. 2005). Topgolf argues that the
`
`term “green” within the ‘389 patent refers to a circular or
`
`elliptical hole marked by a flag, which it asserts is how the
`
`term is generally understood in golf. (Doc. # 27 at 7). In
`
`support, Topgolf cites to sections of its own website that
`
`describe the layout of its driving ranges and other target
`
`types, including circular targets marked by flags that
`
`Agarwal does not identify as infringing the ‘389 patent. (Doc.
`
`## 27 at 2, 4). Topgolf also cites to a Washington Post
`
`
`
`6
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 7 of 14 PageID 389
`
`article to establish that “[n]eutral third parties have
`
`recognized the difference between the circular targets [at
`
`Topgolf’s driving ranges that Agarwal does not allege
`
`infringe his patent] that may look like ‘greens’ and the
`
`‘trench target,’ which is unique and not like a ‘green.’”
`
`(Id. at 18). However, the Court will not consider Topgolf’s
`
`website and the news articles attached to the Motion because
`
`they are outside the four corners of the Complaint and are
`
`not central to Agarwal’s claim.
`
`Additionally, while “green” may typically have one
`
`meaning in traditional golf, it is not clear on the record
`
`before the Court whether “green” may have carried a different
`
`meaning for the patentee. Cf. Phillips, 415 F.3d at 1314,
`
`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
`
`small greens that include target flags at which to aim.” (Doc.
`
`# 1-1 at 1:48-49). This description of a “green” sounds like
`
`the construction of the term urged by Topgolf; however, the
`
`
`
`7
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 8 of 14 PageID 390
`
`patent merely acknowledges that the “greens” at many driving
`
`ranges fit that description. Similarly, while the other
`
`patents cited in the ‘389 patent identify “greens” as
`
`“generally circular or oval in shape” and marked by a flag,
`
`the ‘389 patent does not state that the term “green” is
`
`limited to include only circular greens with target flags,
`
`and Topgolf has not cited any case law construing the term
`
`“green” in that narrow way. (Doc. # 27-4 at 2:41-42, 64).
`
`While the drawings within the patent display circular
`
`holes marked by flags, the patent specifies that these
`
`drawings should “be regarded as illustrative in nature and
`
`not as restrictive.” (Doc. # 1-1 at 3:2-9). The drawings show
`
`“a preferred embodiment” of the invention but the invention
`
`is “capable of other different embodiments.” (Id.); see also
`
`Phillips, 415 F.3d at 1323 (“[W]e have expressly rejected the
`
`contention that if a patent describes only a single
`
`embodiment, the claims of the patent must be construed as
`
`being limited to that embodiment.” (citing Gemstar-TV Guide
`
`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
`
`drawings and citations to previous patents within the ‘389
`
`patent do not render Agarwal’s interpretation of the term
`
`“plurality of target greens” implausible.
`
`
`
`8
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 9 of 14 PageID 391
`
`Next, Topgolf notes that each of the purportedly
`
`infringing driving ranges had only one target trench. Because
`
`there is only one target trench, Topgolf contends that the
`
`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
`
`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
`
`constituting a “plurality of target greens” is plausible. See
`
`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”).
`
`
`
`Furthermore, a determination that Agarwal has not stated
`
`a plausible claim of infringement against Topgolf because
`
`
`
`9
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 10 of 14 PageID 392
`
`Topgolf’s facilities did not contain a “plurality of target
`
`greens” would be premature. Whether Topgolf infringed
`
`Agarwal’s patent by maintaining a “plurality of target
`
`greens” is a disputed fact that should not be resolved on a
`
`Rule 12(b)(6) motion. Cf. Hand Held Prods., Inc. v.
`
`Amazon.com, Inc., No. 12-CV-768-RGA-MPT, 2013 WL 507149, at
`
`*7 (D. Del. Feb. 6, 2013)(“Defendants attempt to
`
`surreptitiously have the court conduct claim construction as
`
`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
`
`claim construction issues before any claim construction has
`
`occurred. As the Federal Circuit wrote,
`
`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.
`
`
`
`10
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 11 of 14 PageID 393
`
`2012)(vacating in part Rule 12(b)(6) dismissal of inducing
`
`infringement claims).
`
`Therefore, the Court will not engage in impromptu claim
`
`construction of the term “plurality of target greens” without
`
`the benefit of claim construction briefing and a hearing. See
`
`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
`
`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
`
`
`
`11
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 12 of 14 PageID 394
`
`not include such a sliding bead. Id. at *6. In contrast, the
`
`‘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
`
`“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,
`
`constituted by numerous separate compartments, could not
`
`plausibly qualify as a “plurality” of different targets.
`
`
`
`12
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 13 of 14 PageID 395
`
`
`
`Thus, Topgolf’s contention that its target trench does
`
`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
`
`
`
`
`
`ORDERED, ADJUDGED, and DECREED:
`
`Defendant Topgolf International, Inc.’s Motion to
`
`Dismiss (Doc. # 27) is DENIED.
`
`
`
`13
`
`

`

`Case 8:16-cv-02641-VMC-JSS Document 29 Filed 01/04/17 Page 14 of 14 PageID 396
`
`DONE and ORDERED in Chambers in Tampa, Florida, this 4th
`
`day of January, 2017.
`
`14
`
`
`
`
`
`

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