Case 3:19-cv-07027-WHA Document 75 Filed 12/19/19 Page 1 of 28
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`Brandon Brown (SBN 266347)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, California 94104
`Telephone: (415) 439-1400
`Facsimile: (415) 439-1500
`Email: brandon.brown@kirkland.com
`[additional counsel listed on signature page]
`
`
`Counsel for Sony Corporation of America, Sony
`Corporation, and Sony Interactive Entertainment LLC
`
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`
`
`BOT M8 LLC,
`
`
`Plaintiff,
`
`v.
`SONY CORPORATION OF AMERICA, SONY
`CORPORATION, and SONY INTERACTIVE
`ENTERTAINMENT LLC,
`
`
`Defendants.
`
` Case No. 3:19-cv-07027-WHA
`
`DEFENDANTS’ MOTION TO
`DISMISS UNDER RULE 12(B)(6)
`FOR FAILURE TO STATE A CLAIM
`& SUPPORTING MEMORANDUM
`
`Date: January 23, 2020
`Time: 8:00 am
`Room: Courtroom 12 - 19th Floor
`Judge: Hon. William H. Alsup
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`DEFENDANTS’ MOTION TO DISMISS
`CASE NO. 3:19-CV-07027-WHA
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`Patent Owner, Bot M8 LLC - Ex. 2002, p. 1
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`Case 3:19-cv-07027-WHA Document 75 Filed 12/19/19 Page 2 of 28
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`NOTICE OF MOTION AND MOTION
`PLEASE TAKE NOTICE that on January 23, 2020 at 8:00 a.m., or as soon thereafter as the
`matter may be heard in the Courtroom of the Hon. William H. Alsup in the United States District Court
`for the Northern District of California, San Francisco Courthouse, Courtroom 2, 19th Floor, 450 Golden
`Gate Avenue, San Francisco, California 94102, Defendants Sony Corporation, Sony Corporation of
`America, and Sony Interactive Entertainment LLC (“Defendants”) will move to dismiss the December 5,
`2019 Amended Complaint filed by Plaintiff Bot M8 LLC (“Bot”) under Federal Rule 12(b)(6).
`Although the Court previously ordered Bot to “file an amended complaint specifying, element-
`by-element, its allegations of infringement” (Dkt. 65 at 1), Bot’s allegations in the Amended Complaint
`regarding its various infringement theories merely parrot or paraphrase the language of certain required
`limitations of each of the 19 asserted claims. This raises the question of what alleged basis exists for
`Bot’s conclusory assertions—and fails to meet the threshold pleading requirement of providing “factual
`content that allows the court to draw the reasonable inference that the defendant is liable for the
`misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As further explained in the attached
`memorandum of points and authorities, Defendants respectfully request that Bot’s Amended Complaint
`should be dismissed.
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`DEFENDANTS’ MOTION TO DISMISS
`CASE NO. 3:19-CV-07027-WHA
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`Case 3:19-cv-07027-WHA Document 75 Filed 12/19/19 Page 3 of 28
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`TABLE OF CONTENTS
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`Page
`INTRODUCTION ............................................................................................................................ 2
`I.
`STATEMENT OF THE ISSUE ........................................................................................................ 3
`II.
`BACKGROUND .............................................................................................................................. 3
`III.
`ARGUMENT .................................................................................................................................... 4
`IV.
`Bot’s Assertions Under the ’540 Patent Fail to Support a Reasonable Inference of Satisfying the
`A.
`Required Location for Storing an Authentication Program. ..................................................................... 5
`Bot’s Assertions Under the ’990 Patent Fail to Support a Reasonable Inference of Satisfying the
`B.
`Required Location for Storing a Mutual Authentication Program. ........................................................ 10
`Bot’s Assertions Under the ’988 Patent Fail to Support an Inference of Satisfying the Required
`C.
`Inspection of Specific Items or the Required Timing of Inspection. ...................................................... 12
`Bot’s Assertions Under the ’670 Patent Fail to Support an Inference of Satisfying the Required
`D.
`Inspection of Specific Items or Required Timing of Inspection. ............................................................ 15
`Bot’s Assertions Under the ’363 Patent Fail to Provide Factual Allegations that Support a
`E.
`Reasonable Inference of Alleged Infringement. ..................................................................................... 17
`F. Bot’s Assertions Under the ’777 Patent Fail to Support a Reasonable Inference of Satisfying the
`Requirement of Calculating and Displaying an Execution Order that is Then Disregarded. ................. 22
`V.
`CONCLUSION ............................................................................................................................... 24
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`DEFENDANTS’ MOTION TO DISMISS
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
`AlterG, Inc. v. Boost Treadmills LLC,
`388 F. Supp. 3d 1133 (N.D. Cal. 2019) .................................................................................................. 6
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .................................................................................................................. 3, 5, 6, 21
`
`In re Gilead Scis. Sec. Litig.,
`536 F.3d 1049 (9th Cir. 2008) ................................................................................................................ 5
`
`Novitaz, Inc. v. inMarket Media, LLC,
`No. 16-CV-06795-EJD, 2017 WL 2311407 (N.D. Cal. May 26, 2017) ................................................. 6
`
`PageMelding, Inc. v. ESPN, Inc.,
`No. C 11-06263 WHA, 2012 WL 851574 (N.D. Cal. Mar. 13, 2012) ................................................... 6
`
`Rules
`RULE 12(B)(6) ......................................................................................................................................... 1, 5
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`DEFENDANTS’ MOTION TO DISMISS
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`Case 3:19-cv-07027-WHA Document 75 Filed 12/19/19 Page 5 of 28
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`I.
`
`INTRODUCTION
`The Court previously ordered plaintiff Bot M8 LLC (“Bot”) to “file an amended complaint
`specifying, element-by-element, its allegations of infringement.” (Dkt. 65 at 1); see also (Ex. 1, 11/21/19
`Tr. at 2:21-3:9) (instructing Bot that it must either “explain in your complaint every element of every
`claim that you say is infringed” or face a motion to dismiss). However, Bot’s December 5, 2019
`Amended Complaint (“AC”) fails to provide factual allegations that support a reasonable inference that
`the required claim elements are satisfied by Bot’s various infringement theories.
`Although the AC increases the quantity of Bot’s allegations, the quality has not improved. In its
`AC, Bot asserts 19 claims from 6 patents against Sony’s PlayStation 4 video game consoles, PlayStation
`Network online services, and several PlayStation 4 video game titles—and includes multiple alternative
`theories for alleged infringement of these 19 claims. But rather than providing factual allegations that tie
`the infringement theories to the accused products and features, the AC resorts—for at least one required
`limitation of each asserted claim—to conclusory assertions that merely parrot or paraphrase the claim
`language. No meaningful factual allegations are provided to support an inference that these conclusory
`assertions are true, nor to suggest what basis Bot has for making them. In several instances, Bot’s
`assertions do not address particular claim limitations at all, and in some instances Bot makes factual
`assertions that contradict other factual assertions elsewhere in the AC. This scattershot approach of
`offering numerous unsupported conclusory assertions regarding multiple alternative theories (in the
`apparent hope that discovery may yield a colorable basis to pursue some subset of them) fails to meet the
`threshold requirement of providing “factual content that allows the court to draw the reasonable inference
`that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`The reason Bot’s AC fails to provide the required factual allegations supporting infringement is
`because the accused products are different from the purported inventions set forth in the asserted patent
`claims and do not infringe any of the asserted claims. The asserted patents were acquired by Bot from a
`maker of commercial casino gaming machines and several key claim limitations are tied to features that
`are aimed at such machines—but which are not applicable to the accused PlayStation 4 consumer video
`game consoles and are therefore not used. For example:
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`DEFENDANTS’ MOTION TO DISMISS
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`Patent Owner, Bot M8 LLC - Ex. 2002, p. 5
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`Case 3:19-cv-07027-WHA Document 75 Filed 12/19/19 Page 6 of 28
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`• The asserted ’540 and ’990 patents require a specific location for storing an “authentication” or
`“mutual authentication” program on the same component as a game program in order to allow the
`rest of a casino game machine to be constructed from off-the-shelf computer parts that do not
`handle specialized authentication functions. Such considerations are not applicable to PlayStation
`4 consoles, which are a custom designed, mass-produced consumer product.
`• The asserted ’988 and ’670 patents require specific timing for execution of a “fault inspection”
`program before game programs are started so that disruptive faults will not arise when casino
`customers are using the machine. Such considerations are not applicable to PlayStation 4
`consoles, which are operated by the same consumers both before and during gameplay.
`• The asserted ’363 and ’777 patents (one of which is aimed at casino games) require specific
`gaming operations such as “totalizing” game results (for example, casino winnings) from multiple
`devices and disregarding a previously calculated “execution order” for game characters, which
`are operations that are not useful for and not offered by the accused PlayStation 4 video games.
`Bot’s AC fails to provide meaningful factual allegations supporting alleged infringement of the
`limitations relating to these issues.
`Bot’s failure to adequately plead its accusations reflects a lack of factual basis for satisfying at
`least one limitation of each asserted claim and the accusations in the AC thus do not merit proceeding
`beyond the pleading stage. To streamline the issues presented in this motion, Defendants have not raised
`each of the numerous limitations that Bot’s allegations fail to satisfy, but instead focus on one key claim
`limitation that is insufficiently pled for each one of Bot’s multiple infringement theories for each asserted
`claim. Accordingly, Defendants respectfully request that Bot’s infringement accusations be dismissed.
`II.
`
`STATEMENT OF THE ISSUE
`Whether the infringement accusations in Bot’s Amended Complaint should be dismissed because
`Bot’s conclusory assertions regarding certain required limitations of each of the asserted patent claims
`fail to provide meaningful factual allegations that support a reasonable inference of entitlement to relief.
`III. BACKGROUND
`The plaintiff in this case, Bot M8 LLC, was formed on July 6, 2016, just a few months before
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`DEFENDANTS’ MOTION TO DISMISS
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`receiving an alleged assignment of the asserted patents. During the three years following its formation,
`Bot did not reach out to contact Sony and did not provide any indication that it believed Sony infringed
`any of its patents. The first time Sony learned of Bot’s infringement accusations was when Bot filed its
`Complaint on August 12, 2019 in the Southern District of New York. The Complaint accused Sony’s
`PlayStation 4 video game console of infringing four patents (the ’540, ’990, ’988, and ’670 patents) and
`accused the Uncharted 4 video game of infringing two other patents (the ’363 and ’777 patents).
`On October 3, 2019, Defendants filed a Rule 12(b)(3) motion based upon improper venue. Judge
`Cote determined that venue was improper and transferred the case to this Court.
`Following transfer, this Court held a case management conference on November 21, 2019. At the
`conference, the Court instructed Bot to explain its infringement accusations on an element-by-element
`basis and noted that failure to do so would leave the Complaint vulnerable to a motion to dismiss. (Ex. 1,
`11/21/19 Tr. at 2:20-3:9). The Court subsequently ordered Bot to “file an amended complaint specifying,
`element-by-element, its allegations of infringement.” (Dkt. 65 at 1).
`On December 5, 2019, Bot served its AC. (Dkt. 68). The AC adds 164 pages of (often repetitive)
`allegations and asserts multiple alternative infringement theories for the 19 asserted claims. However,
`the AC remains deficient because it fails to provide factual allegations supporting a reasonable inference
`that the required limitations of the asserted claims are satisfied. Defendants therefore bring this motion.
`IV. ARGUMENT
`Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a pleading that fails to
`“state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). To avoid dismissal, the
`pleading’s “[f]actual 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). Satisfying that standard requires “factual content
`that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
`alleged.” Iqbal, 556 U.S. at 678. In evaluating whether this requirement is met, courts “are not bound to
`accept as true a legal conclusion couched as a factual allegation.” Id. at 678-679 (citation omitted); see
`also In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (courts need not accept as true
`“allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences”).
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`DEFENDANTS’ MOTION TO DISMISS
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`Dismissal is warranted “where the well-pleaded facts do not permit the court to infer more than the mere
`possibility of misconduct,” or where “the complaint has alleged—but it has not ‘show[n]’—‘that the
`pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citation omitted).
`This Court has previously held that, under the “Iqbal standard,” a pleading that does not provide
`an “explanation as to the how or why the[] products infringe, does not lead to any inference that plaintiff
`may be entitled to relief.” PageMelding, Inc. v. ESPN, Inc., No. C 11-06263 WHA, 2012 WL 851574, at
`*2 (N.D. Cal. Mar. 13, 2012) (emphasis in original). Other decisions in this district similarly held that “if
`a complaint does not contain factual allegations that would permit a court to infer that a required element
`of the patent claim was satisfied, it is hard to see how infringement would be ‘probable.’” Novitaz, Inc.
`v. inMarket Media, LLC, No. 16-CV-06795-EJD, 2017 WL 2311407, at *3 (N.D. Cal. May 26, 2017);
`see also AlterG, Inc. v. Boost Treadmills LLC, 388 F. Supp. 3d 1133, 1142–43 (N.D. Cal. 2019)
`(explaining that a “direct infringement claim ‘does not satisfy the standards of Twombly and Iqbal where
`it does not at least contain factual allegations that the accused product practices every element of at least
`one exemplary claim”). As discussed below, Bot’s AC fails to satisfy these threshold pleading
`requirements because it does not provide factual allegations that explain and support a reasonable
`inference of infringement of key required limitations of each of the 19 asserted patent claims.1
`A.
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`Bot’s Assertions Under the ’540 Patent Fail to Support a Reasonable Inference of
`Satisfying the Required Location for Storing an Authentication Program.
`1.
`Exemplary Requirements of the ’540 Patent
`U.S. Patent No. 8,078,540 (“’540 patent”) relates to a particular mechanism for “authentication”
`of game programs.2 Several limitations setting forth required characteristics of Claim 1 (the only
`asserted claim for the ’540 patent) are shown below:
`
`1 To maintain a streamlined motion, Defendants address deficiencies for one limitation for each of Bot’s
`infringement theories for each of the asserted patent claims. The numerous additional deficiencies and
`non-infringement positions will, to the extent necessary, be addressed in the future.
`
`2 The ’540 patent explains that it relates to “authenticating the gaming information, in other words,
`checking and verifying that the gaming information, which is the object of the authenticating and loading
`process, has not been manipulated.” (Dkt. 68-4, ’540 Patent at 5:62-65).
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`DEFENDANTS’ MOTION TO DISMISS
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`• “a board including a memory in which a game program for executing a game and an
`authentication program for authenticating the game program are stored” (Dkt. 68-4, ’540 Patent,
`Claim 1 at 12:65-67) 3; and
`• “a motherboard which is different from the board and connects to the board . . .” (Id. at 13:1-2).
`As indicated by the limitations quoted above, Claim 1 contains a specific requirement regarding
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`the location of storing an “authentication program.” In particular, Claim 1 requires that both a game
`program and an authentication program (that authenticates the game program) are stored together in a
`memory on a board that is different from the motherboard. The specification explains that this location
`requirement is important for the invention of the ’540 patent in order to separate specialized
`authentication functions from the motherboard, so that low cost, generic parts can be used for the
`motherboard of casino gaming machines. (Id. at 11:12-17) (“the motherboard 20 is constituted by a
`commercially available generic motherboard, the motherboard 20 has highly generic characteristics and,
`consequently, it is possible to reduce manufacturing costs”).
`2.
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`Bot Fails to Provide a Factual Basis for Satisfying the Required Location for
`Storing an Authentication Program.
`The AC sets forth four alternative theories for what constitutes “authenticating the game
`program” (which is carried out by an authentication program) for purposes of the ’540 patent: a)
`designating a PlayStation 4 console as “primary,” b) checking a “ROM mark,” c) various error codes,
`and d) communications with network servers. (Dkt. 68 at 94-97). However, as explained below, none of
`these four theories contain factual allegations that support a reasonable inference of satisfying the
`requirement regarding the location of storing the authentication program (leaving aside whether the
`accused items are authentication programs at all).
`a) Designating a PlayStation 4 Console as “Primary.” Bot asserts that “authenticating the
`game program” occurs in connection with checking if a PlayStation 4 console has been designated as the
`
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`3 Underlining of quoted claim language has been added throughout to identify the portions tied to points
`made in this motion. A list of the complete language of each asserted independent claim, with
`highlighting indicating the limitations quoted in this motion, is attached as Exhibit B.
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`DEFENDANTS’ MOTION TO DISMISS
`CASE NO. 3:19-CV-07027-WHA
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`“primary” console for a certain user, which indicates if the console has permission to use certain features.
`(Id. at 94). With regard to this point and with regard to the required storage location, the allegations
`provided in the AC (absent omitted images regarding designating a console as primary) are as follows:
`PlayStation 4 requires one to set a PlayStation 4 console as the primary PlayStation 4 if
`downloaded games on the hard drive are desired to be played offline, otherwise the
`downloaded games cannot be played because the hard drive includes an authentication
`program for verifying that the PS4 is allowed to play the game.
` (Id.) No meaningful factual allegation is provided to support a reasonable inference of satisfying the
`requirement of storing both the game program and authentication program together in a memory on a
`board that is not the motherboard (as opposed, for example, to storing the alleged authentication
`program in a memory on the motherboard). (Dkt. 68-4, ’540 Patent, Claim 1 at 12:65-13:5) (requiring “a
`board including a memory in which a game program for executing a game and an authentication program
`for authenticating the game program are stored” and “a motherboard which is different from the board”).
`Instead, Bot merely offers a conclusory assertion that “the hard drive includes an authentication
`program”—without suggesting any factual basis for this assertion regarding the location for storing the
`alleged authentication program. (Dkt. 68 at 94).
`In addition to lacking support in factual allegations, Bot’s conclusory assertion about storage of
`the alleged authentication program on the hard drive conflicts with other allegations in the AC. In
`particular, Bot alleged earlier that the “authentication program for the PlayStation 4 hard drive, Operating
`System, and games is stored on PlayStation 4 MX25L25635FMI 256Mb Serial Flash Memory” (which
`the AC alleges is located on the motherboard). (Id. at 91, para. 74); see also (id. at 105, para 94)
`(explaining that “[t]he PlayStation 4 motherboard contains flash memory,” namely the
`“MX25L25635FMI 256Mb Serial Flash Memory chip”). These conflicting allegations confirm that
`Bot’s conclusory assertions regarding the ’540 patent lack any factual basis. Such allegations are
`insufficient to support a reasonable inference of entitlement to relief.
`b) Checking a “ROM Mark.” Bot further asserts that “authenticating the game program”
`allegedly occurs in connection with reading a “ROM Mark” from Blu-ray discs. (Dkt. 68 at 95). With
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`DEFENDANTS’ MOTION TO DISMISS
`CASE NO. 3:19-CV-07027-WHA
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`regard to this point and with regard to the required storage location, the allegations provided in the AC
`(absent omitted block-quoted text regarding the ROM Mark) are as follows:
`A PlayStation 4 Blu-ray disc containing game software that is inserted into a PlayStation
`4 console is also a board comprising memory for a game program for executing a game
`on the [sic.] using the PlayStation 4.
`The PlayStation 4 includes an authentication program to authenticate the game program
`on the Blu-ray discs.
`(Id.) Once again, no factual allegations are provided for the requirement of storing both the game
`program and authentication program together in a memory on a board that is not the motherboard.
`(Dkt. 68-4, ’540 Patent, Claim 1 at 12:65-67). Rather, Bot’s vague allegation that “PlayStation 4
`includes an authentication program” suggests that the alleged authentication program is merely stored
`somewhere in the system as a whole (which includes the motherboard)—contrary to what is required by
`the ’540 patent. This fails to support a reasonable inference of infringement.
`c) Various Error Codes. Bot asserts that “authenticating the game program” occurs in
`connection with generating various error codes. (Dkt. 68 at 96). With regard to this point and with
`regard to the required storage location, the allegations provided in the AC (absent omitted block-quoted
`text allegations regarding the error codes) are as follows:
`Game programs stored on a hard drive or Blu-ray include programming for authenticating
`the game program. Various error codes can show up on the PlayStation 4 device during
`execution of the authentication program.
`(Id.) This conclusory assertion merely paraphrases the claim language regarding the required storage
`location. (Dkt. 68-4, ’540 Patent, Claim 1 at 12:65-67) (requiring “a board including a memory in which
`a game program for executing a game and an authentication program for authenticating the game
`program are stored”). No meaningful factual allegations are provided to support a reasonable inference
`that the program for generating error codes relating to a game program is actually stored together with
`the game program on a memory on a board that is not the motherboard.
`Aside from their conclusory nature, Bot’s allegations here also contradict its allegations
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`DEFENDANTS’ MOTION TO DISMISS
`CASE NO. 3:19-CV-07027-WHA
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`elsewhere in the AC regarding location of the program responsible for these same error codes. For claim
`1 of the ’988 patent, Bot accuses the same list of error codes discussed above (and asserts that these
`codes comprise a “fault inspection program”). (Compare Dkt. 68 at 144 with id. at 96). In connection
`with attempting to satisfy the requirements of the ’988 patent, Bot alleges that this accused feature “is
`stored on the flash memory,” which Bot acknowledges is located on the motherboard (id. at 122)—not on
`the hard disk or Blu-ray, as Bot alleges in connection with the ’540 patent. (Id. at 146). This confirm
`that Bot’s conclusory assertions lack any reasonable factual basis.
`d) Communications With Network Servers. Bot further asserts that “authenticating the game
`program” occurs in connection with logging in to a PlayStation Network account and establishing an
`encrypted communications with PlayStation Network servers. (Id. at 96-97). With regard to this point
`and with regard to the required storage location, the allegations provided in the AC (absent omitted
`images and block-quoted text regarding connecting to servers) are as follows:
`The PlayStation Network server, when used with the PlayStation 4, comprises a board
`which stores game program for streaming or multiplayer online games, hosted by the
`PlayStation Network.
`The PlayStation 4 uses 2-step verification and a Cryptography algorithm as an
`authentication program for authenticating the game programs when a user attempts to
`play a PlayStation Network server game.
`(Id. at 96-97). Once again, no meaningful factual allegations are provided for the requirement of storing
`the game program and authentication program together in a memory on a board that is not the
`motherboard. (Dkt. 68-4, ’540 Patent, Claim 1 at 12:65-67). Rather, Bot’s allegations indicate to the
`contrary. Bot alleges that “PlayStation 4 uses 2-step verification and a Cryptography algorithm as an
`authentication program . . . when a user attempts to play a PlayStation Network server game. (Dkt. 68 at
`97) (emphasis added). In other words, the alleged authentication program is located on a PlayStation 4
`console while the game program in question is located on network servers. This conflicts with the ’540
`patent’s requirement of storing the game program and authentication program together. Thus, Bot fails
`to provide factual allegations supporting a reasonable inference of entitlement to relief.
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`DEFENDANTS’ MOTION TO DISMISS
`CASE NO. 3:19-CV-07027-WHA
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`9
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`Patent Owner, Bot M8 LLC - Ex. 2002, p. 12
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`Case 3:19-cv-07027-WHA Document 75 Filed 12/19/19 Page 13 of 28
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`B.
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`Bot’s Assertions Under the ’990 Patent Fail to Support a Reasonable Inference of
`Satisfying the Required Location for Storing a Mutual Authentication Program.
`1.
`Exemplary Requirements of the ’990 Patent
`U.S. Patent No. 8,095,990 (“’990 patent”) relates to a particular mechanism for “authentication”
`of game programs and “mutual authentication” of the authentication program. Several claim limitations
`setting forth required characteristics (common to all asserted claims of the ’990 patent) are shown below:
`• “a removable storage medium storing therein gaming information including a mutual
`authentication program” (Dkt. 68-5, ’990 Patent, Claim 1 at 17:6-8); and
`• “the mutual authentication unit confirmed to execute a mutual authentication process for the
`authentication program to check that the authentication program is a legitimate program
`according to the mutual authentication program included in the gaming information authenticated
`by the authentication unit” (Id. at 17:26-31).
`Although the citations above are to Claim 1, Claims 5 and 9 (the other asserted independent claims of the
`’990 patent) contain these same two limitations. (Id., Claim 5 at 17:64-18:22, Claim 9 at 18:48-19:3).
`Thus, all asserted claims of the ’990 patent contain a specific requirement regarding the location
`of storing a “mutual authentication program” (that authenticates, and is authenticated by, an
`authentication program). In particular, the mutual authentication program must be located together with
`a game program on a removable storage medium.
`2.
`
`Bot Fails to Provide a Factual Basis for Satisfying the Required Location for
`Storing a Mutual Authentication Program.
`The AC sets forth two theories for items allegedly involving the required “mutual authentication
`program”: a) designating a PS4 as “primary,” and b) communications with network servers. (Dkt. 68 at
`117-18). However, as explained below, neither of these theories contain factual allegations that support a
`reasonable inference of satisfying the requirement for the location of storing the mutual authentication
`program (leaving aside whether the accused items are mutual authentication programs at all).
`a) Designating a PS4 as “Primary.” Bot asserts that “mutual authentication” allegedly occurs in
`connection with checking whether a PlayStation 4 has been designated as “primary,” which indicates
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`DEFENDANTS’ MOTION TO DISMISS
`CASE NO. 3:19-CV-07027-WHA
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`10
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`Patent Owner, Bot M8 LLC - Ex. 2002, p. 13
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`

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`Case 3:19-cv-07027-WHA Document 75 Filed 12/19/19 Page 14 of 28
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`whether a particular PS4 console has permission to access certain features. (Id. at 117-18). The
`allegations provided in the AC regarding this point (absent images regarding designating a PS4 as
`primary and an image of a Flash memory chip) are as follows:
`The game program on the hard drive or disc contains a mutual authentication process to
`check that the authentication program is legitimate, i.e., verifying the authenticity of the
`PlayStation 4. PlayStation 4 requires one to set a PlayStation 4 console as the primary
`PlayStation 4 if downloaded games on the hard drive are desired to be played offline,
`otherwise the downloaded games cannot be played because the hard drive includes an
`authentication program for verifying that the PS4 is allowed to play the game.
`The PlayStation 4 website further describes the process for activating the Primary PS4.
`In order to play pirated games on the PlayStation 4, one must “dump” the PlayStation
`NOR Chip, which is one of the Flash memory c