Case 5:18-cv-07581-LHK Document 26 Filed 02/21/19 Page 1 of 15
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`HARMEET K. DHILLON (SBN: 207873)
`harmeet@dhillonlaw.com
`NITOJ P. SINGH (SBN: 265005)
`nsingh@dhillonlaw.com
`DHILLON LAW GROUP INC.
`177 Post Street, Suite 700
`San Francisco, California 94108
`Telephone: (415) 433-1700
`Facsimile:
`(415) 520-6593
`Attorneys for Plaintiff Konda Technologies, Inc.
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`KONDA TECHNOLOGIES, INC., a California
`corporation,
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`CASE NO. 5:18-cv-07581-LHK
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`Plaintiff,
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`v.
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`FLEX LOGIX TECHNOLOGIES, INC.,
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`Defendant.
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`KONDA TECHNOLOGIES, INC.’S
`OPPOSITION TO FLEX LOGIX
`TECHNOLOGIES, INC.’S MOTION TO
`DISMISS COMPLAINT PURSUANT TO
`FED. R. CIV. P. 12(b)(6) AND TO STRIKE
`PORTIONS OF COMPLAINT PURSUANT
`TO FED. R. CIV. P. 12(f); KONDA
`TECHNOLOGIES, INC.’S REQUEST FOR
`LEAVE TO FILE FIRST AMENDED
`COMPLAINT
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`Date: May 9, 2019
`Time: 1:30 p.m.
`Judge: Hon. Lucy H. Koh
`Ctrm.: 8, 4th Floor
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`Konda Technologies, Inc.’s Opposition re
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`FLEX LOGIX EXHIBIT 1036
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`Case 5:18-cv-07581-LHK Document 26 Filed 02/21/19 Page 2 of 15
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`TABLE OF CONTENTS
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`I. INTRODUCTION ................................................................................................................................. 4
`II. ARGUMENT ....................................................................................................................................... 6
`A. Konda Tech’s U.S. Patents No. 8,898,611; 9,529,958; and 10,050,904 Are Valid Under 35
`U.S.C. § 102(b). ..................................................................................................................................... 6
`B. Flex Logix’s Argument That the Allegations of Infringement by Flex Logix Are Inadequate Can
`Be Obviated by the Court Granting Leave to File Konda Tech’s First Amended Complaint. .............. 9
`C. Konda Tech’s Unfair Business Practices Cause of Action Does Not Rest Solely on Patent
`Infringement. ........................................................................................................................................ 10
`D. Konda Tech’s Unfair Business Practices Cause of Action Is Not Barred by the Applicable Statute
`of Limitations. ...................................................................................................................................... 12
`E. The Founders of Flex Logix Acted Unfairly and Fraudulently With Respect to Konda Tech....... 13
`III. CONCLUSION ................................................................................................................................. 15
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`Konda Technologies, Inc.’s Opposition re
`Motion to Dismiss, etc.
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`Case 5:18-cv-07581-LHK Document 26 Filed 02/21/19 Page 3 of 15
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`TABLE OF AUTHORITIES
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`Cases
`Aryeh v. Canon Business Solutions, Inc., 55 Cal.4th 1185, 292 P.3d 871 (2013) ................................... 12
`Bennet v. Hibernia Bank, 47 Cal.2d 540, 559-560 (1956) ..................................................................... 13
`Brandon G. v. Gray, 111 Cal.App.4th 29, 35 (2003) .............................................................................. 13
`Statutes
`35 U.S.C. § 102 .......................................................................................................................................... 5
`35 U.S.C. § 102(b) ............................................................................................................................. 6, 8, 9
`California Business & Professions Code Section 17200, et seq. ................................................... 5, 10, 12
`Federal Rules of Civil Procedure Rule 9 ............................................................................................. 6, 15
`Section 17208........................................................................................................................................... 12
`Regulations
`37 C.F.R. § 1.14 ................................................................................................................................. 7, 8, 9
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`Konda Technologies, Inc.’s Opposition re
`Motion to Dismiss, etc.
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`Plaintiff Konda Technologies, Inc. (“Konda Tech”) hereby opposes Defendant Flex Logix
`Technologies, Inc.’s (“Flex Logix”) Motion to dismiss Konda Tech’s Complaint in this action pursuant
`to Federal Rule of Civil Procedure 12(b)(6) and/or to strike or dismiss certain portions of Konda Tech’s
`Complaint under Federal Rule of Civil Procedure 12(f) and/or 12(b)(6). This Court should deny Flex
`Logix’s Motion for the following reasons.
`I. INTRODUCTION
`Konda Tech was founded by Venkat Konda, Ph.D. (“Dr. Konda”) in 2007, after he solved what
`were approximately 30-year-old technical problems by inventing strictly and rearrangeably non-
`blocking multi-cast solutions for Benes and Butterfly Fat Tree Networks and the seminal 2D layouts to
`implement those networks using only vertical and horizontal wires. (See Declaration of Venkat Konda,
`Ph.D. (“Konda Decl.”) at ¶ 5.) Dr. Konda is a pioneer in multi-stage based field-programmable gate
`array (“FPGA”) routing fabric and interconnection networks technology. (Id.) Konda Tech was
`founded to commercialize semiconductor integrated circuits and system level interconnection
`technology solutions based on his work. (Id.)
`Konda Tech licenses chip and system level interconnection technology solutions to the
`commercial semiconductor industry. (See Konda Decl. at ¶ 6.) To date, Konda Tech has eleven
`patents relating to the technology. (Id.) Konda Tech has licensed FPGA interconnection architecture
`patents to several FPGA chip vendors, the first of which has made and sold three generations of chips.
`(Id.) Dr. Konda is currently the CEO of Konda Tech. (Id.)
`This is an action by Konda Tech against Flex Logix. Konda Tech’s Complaint, which Flex
`Logix’s Motion requests the Court to dismiss or to strike portions thereof, alleges claims of patent
`infringement and violation of California Business & Professions Code Section 17200, et seq. for unfair
`business practices committed by Flex Logix. The patents-in-suit1 relate to the field of FPGAs. These
`devices have many commercial applications ranging from a handheld calculator to an entire artificial
`intelligence system. (See Konda Decl. at ¶ 9.) The subject matter claimed in the patents-in-suit
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`1 U.S. Patents No. 8,269,523 (the “‘523 patent”); 8,898,611 (the “‘611 patent”); 9,529,958 (the “‘958
`patent”); 10,003,553 (the “‘553 patent”), and 10,050,904 (the “‘904 patent”) are collectively referred to
`herein as the “patents-in-suit”.
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`Konda Technologies, Inc.’s Opposition re
`Motion to Dismiss, etc.
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`provides significant die area savings with power saving and performance improvements over currently
`available 2D-Mesh based fabrics. (See Konda Decl. at ¶ 17.)
`Flex Logix’s Motion first argues that Konda Tech’s Third, Fourth, and Sixth Causes of Action
`in its Complaint fail to state a claim for patent infringement of the patents that Flex Logix is accused of
`infringing, because each of those patents is invalid under 35 U.S.C. § 102. These causes of action
`relate to Flex Logix’s infringement of Konda Tech’s ‘611 patent; ‘958 patent; and the ‘904 patent
`collectively referred to as the “‘611 family of patents.” Flex Logix contends that the ‘611 family of
`patents is invalid on the ground that two U.S. provisional patent applications had become public more
`than a year prior to the earliest priority date of the ‘611 patent which is the parent of the ‘958
`continuation patent, which in turn is the parent of the ‘904 continuation patent. To the contrary, the
`two U.S. provisional patent applications were not in fact available to the public as Flex Logix contends,
`so the ‘611 family of patents are valid and enforceable.
`Second, Flex Logix argues that Konda Tech’s Second, Third, Fourth, Fifth, and Sixth Causes of
`Action against Flex Logix for infringement of the ‘611 family of patents plus two additional patents,
`namely, Konda Tech’s ‘523 and ‘553 patents, do not plead facts sufficient to state a plausible claim for
`patent infringement. Konda Tech believes that its Complaint satisfied basic notice pleading
`requirements. However, in order to obviate Flex Logix’s contentions regarding the insufficiency of
`Konda Tech’s Complaint, Konda Tech requests the Court to grant leave to immediately file its First
`Amended Complaint accompanying this Opposition as an attachment to the [Proposed] Order
`submitted herewith. It is respectively submitted that Konda Tech’s First Amended Complaint will
`economize both the Court’s time and the parties’ time going forward and allow this action to proceed
`without delay.
`Third, Flex Logix’s Motion argues that Konda Tech’s First Cause of Action for Unfair Business
`Practices pursuant to California Business & Professions Code Section 17200, et seq. is preempted by
`Federal patent law and is barred by the statute of limitations. The basis for Flex Logix’s argument is
`that Konda Tech’s First Cause of Action is preempted in that Konda Tech’s First Cause of Action
`essentially alleges only patent infringement. However, Konda Tech’s First Cause of Action does not
`rely on patent infringement as the unfair business practice, but instead is fundamentally grounded on
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`Konda Technologies, Inc.’s Opposition re
`Motion to Dismiss, etc.
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`unfair and fraudulent acts committed by the founders of Flex Logix as set forth in Konda Tech’s First
`Amended Complaint. Consequently, the issue of preemption is obviated by Konda Tech’s First
`Amended Complaint.
`With respect to Flex Logix’s contention that Konda Tech’s First Cause of Action is barred by
`the applicable statute of limitations, as explained in his declaration, Dr. Konda did not become aware of
`the facts that serve as grounds for the First Cause of Action until December 18, 2015. Accordingly, the
`First Cause of Action in Konda Tech’s Complaint is not barred by the applicable statute of limitations
`in view of California’s delayed discovery rule.
`Finally, Flex Logix’s Motion requests the Court to order that references to “fraud” in Konda
`Tech’s Complaint be stricken based on the contention that such “references to fraud are immaterial and
`impertinent with respect to the claims pled and scandalous and in view of the complaint’s failure to
`plead any alleged fraud with particularity.” In response to Flex Logix’s contention, Konda Tech’s First
`Amended Complaint asserts two additional causes of action which plead fraud with the particularity as
`required by Federal Rules of Civil Procedure Rule 9.
`Accordingly, this Court should deny Flex Logic’s Motion and grant Konda Tech leave to file its
`First Amended Complaint so that this action can proceed forthwith.
`II. ARGUMENT
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`Konda Tech’s U.S. Patents No. 8,898,611; 9,529,958; and 10,050,904 Are Valid
`A.
`Under 35 U.S.C. § 102(b).
`Flex Logix incorrectly contends that U.S. Provisional Patent Applications 60/984,724 (“the ‘724
`provisional application”) filed on November 2, 2007 and 61/018,494 (“the ‘494 provisional
`application”) filed on January 1, 2008 are prior art with respect to Konda Tech’s ‘611 family of patents,
`thereby invalidating the ‘611 family of patents under 35 U.S.C. § 102(b).
`To the contrary, the ‘724 and ‘494 provisional applications are not prior art with respect to the
`‘611 family of patents. Although PCT Application No. WO 2008/109756 A1 incorporated by reference
`the ‘724 and ‘494 provisional applications and was published on September 12, 2008 as Flex Logix
`points out in its Motion, the ‘724 and ‘494 provisional applications did not become available to the
`public as of the publication date as Flex Logix contends.
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`Konda Technologies, Inc.’s Opposition re
`Motion to Dismiss, etc.
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`The pertinent Patent Rules effective at the time are as follows:
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`37 C.F.R. § 1.14(a)(1)(vi) reads, in pertinent part:
`(vi) Unpublished pending applications (including provisional applications) that are
`incorporated by reference or otherwise identified. A copy of the application as
`originally filed of an unpublished pending application may be provided to any person,
`upon written request and payment of the appropriate fee (§ 1.19(b)), if the application is
`incorporated by reference or otherwise identified in a U.S. patent, a statutory invention
`registration, a U.S. patent application publication, or an international patent application
`publication that was published in accordance with PCT Article 21(2). The Office will
`not provide access to the paper file of a pending application, except as provided in
`paragraph (c) or (i) of this section. (Emphasis added.)
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`37 C.F.R. § 1.14(c) reads:
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`(c) Power to inspect a pending or abandoned application. Access to an application
`may be provided to any person if the application file is available, and the
`application contains written authority (e.g., a power to inspect) granting access to
`such person. The written authority must be signed by:
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`(1) An applicant;
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`(2) An attorney or agent of record;
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`(3) An authorized official of an assignee of record (made of record
`pursuant to § 3.71 of this chapter); or
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`(4) A registered attorney or agent named in the papers accompanying the
`application papers filed under § 1.53 or the national stage documents filed under §
`1.495, if an executed oath or declaration pursuant to § 1.63 or § 1.497 has not been
`filed. (Emphasis added.)
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`37 C.F.R. § 1.14(i) reads:
`(i) Access or copies in other circumstances. The Office, either sua sponte or on petition,
`may also provide access or copies of all or part of an application if necessary to carry
`out an Act of Congress or if warranted by other special circumstances. Any petition by
`a member of the public seeking access to, or copies of, all or part of any pending or
`abandoned application preserved in confidence pursuant to paragraph (a) of this section,
`or any related papers, must include:
`(1) The fee set forth in § 1.17(g); and
`(2) A showing that access to the application is necessary to carry out an Act of
`Congress or that special circumstances exist which warrant petitioner being granted
`access to all or part of the application.
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`(See Konda Decl. at ¶ 21.)
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`Konda Technologies, Inc.’s Opposition re
`Motion to Dismiss, etc.
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`Access to the ‘724 and ‘494 provisional applications was not available to the public under 37
`C.F.R. § 1.14(a)(1)(vi) and (c) during the period September 12, 2008 through October 16, 2008, during
`which the ‘724 and ‘494 provisional patent applications were pending, without the permission of Dr.
`Konda. Dr. Konda never gave such permission to anyone. (See Konda Decl. at ¶ 22.)
`Notably, Konda Tech filed PCT application PCT/US2008/082171 on November 2, 2008,
`claiming priority to the ‘724 and ‘494 provisional applications, while those applications were pending.
`PCT application PCT/US2008/082171 was not abandoned until February 17, 2009. Thus, the ‘724 and
`‘494 provisional applications became available to the public only as of February 17, 2009 under 37
`C.F.R. § 1.14(a)(1)(iv) due to the abandonment of PCT application PCT/US2008/082171. (See Konda
`Decl. at ¶ 23.)
`The ‘724 and ‘494 provisional applications were refiled as U.S. Provisional Patent Applications
`61/252,603 (“the ‘603 provisional application”) and 61/252,609 (“the ‘609 provisional application”),
`respectively, on October 16, 2009. Thus, any public access to the ‘724 and ‘494 provisional
`applications from October 16, 2008 through October 16, 2009 would not have been prior art in view of
`the one-year grace period accorded to inventors under 35 U.S.C. 102(b).2 (See Konda Decl. at ¶ 23.)
`Subsequently, Konda Tech filed PCT application PCT/US2010/052984 on October 16, 2010
`within one year of the filing of the ‘603 and ‘609 provisional applications filed on October 16, 2009
`and claimed priority to the pending ‘603 and ‘609 provisional applications. U.S. patent application
`13/502,207 for the ‘611 patent claiming priority to PCT application PCT/US2010/52984 was timely
`filed on April 16, 2012 and issued as the ‘611 patent. Therefore, the ’611 family of patents is valid and
`enforceable. (See Konda Decl. at ¶ 24.)
`Clearly, Flex Logix’s argument is fatally flawed: the ‘724 and ‘494 provisional applications
`were not in fact available to the public as of September 12, 2008 as Flex Logix contends. Flex Logix
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`2 35 U.S.C. § 102(b) effective at all relevant times reads, in pertinent part:
`A person shall be entitled to a patent unless —
`…
`(b) the invention was patented or described in a printed publication in this or a foreign country
`or in public use or on sale in this country, more than one year prior to the date of the
`application for patent in the United States….(Emphasis added.)
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`Konda Technologies, Inc.’s Opposition re
`Motion to Dismiss, etc.
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`failed to consider the last sentence of the Patent Rule that they quote on page 5, at lines 20-21 of their
`Motion which refers to 37 C.F.R. § 1.14(c):
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`(c) Power to inspect a pending or abandoned application. Access to an application
`may be provided to any person if the application file is available, and the
`application contains written authority (e.g., a power to inspect) granting access to
`such person.
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`Dr. Konda never gave such permission to anyone. (See Konda Declaration at ¶ 22.) Therefore,
`Konda Tech’s ‘611 family of patents are valid and enforceable under 35 U.S.C. § 102(b).
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`B. Flex Logix’s Argument That the Allegations of Infringement by Flex Logix Are
`Inadequate Can Be Obviated by the Court Granting Leave to File Konda Tech’s First Amended
`Complaint.
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`Flex Logix argues that Konda Tech’s Complaint does not specify what Flex Logix products are
`accused of infringing the patents-in-suit. Also, with respect to Konda Tech’s allegations of
`infringement, for each of the patents, Flex Logix argues that the Complaint makes no attempt to
`compare the patented claims to any allegedly infringing products.
`Konda Tech believes that its Complaint satisfied basic notice pleading requirements, because
`the Complaint alleges “FPGA devices (‘Accused FPGA Devices’)” marketed by Flex Logix infringe
`the patents-in-suit. However, in order to obviate Flex Logix’s contentions regarding the insufficiency
`of Konda Tech’s Complaint, Konda Tech requests the Court to grant leave to immediately file its First
`Amended Complaint accompanying this Opposition as an attachment to the [Proposed] Order
`submitted herewith.
`Konda Tech’s First Amended Complaint specifically names Flex Logix products that are
`alleged to infringe Konda Tech’s patents and compares those products to the subject matter claimed in
`Konda Tech’s patents by referencing Flex Logix documentation as evidence to demonstrate
`infringement. (See Konda Decl. at ¶ 20 and Exhibits 1-7 attached thereto.) The referenced Flex Logic
`documentation also provides evidence of contributory and induced infringement by Flex Logix.
`Discovery in this action is expected to yield further evidence of Flex Logix’s infringement of the
`patents-in-suit.
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`Konda Technologies, Inc.’s Opposition re
`Motion to Dismiss, etc.
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`It is respectively submitted that granting leave for Konda Tech to file its First Amended
`Complaint at this time will economize both the Court’s time and the parties’ time so that this action can
`proceed forward without delay. Accordingly, Konda Tech earnestly seeks leave of Court to file its First
`Amended Complaint so that this action can proceed forthwith.
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`C. Konda Tech’s Unfair Business Practices Cause of Action Does Not Rest Solely on
`Patent Infringement.
`Flex Logix argues that “Konda Tech’s sole non-patent cause of action is in fact a patent
`infringement claim in disguise.” To the contrary, Konda Tech’s California Business & Professions
`Code Section 17200, et seq. cause of action for unfair business practices against Flex Logix is based on
`unfair and fraudulent acts by Drs. Dejan Markovic and Chen C. Wang who founded Flex Logix.
`Hence, that cause of action is not preempted by Federal patent law.
`More particularly, Dr. Markovic told Dr. Konda in 2009 that he would help Konda Tech get
`funded by UCLA Institute for Technology Advancement (“UCLA/ITA”). (See Konda Decl. at ¶ 29.)
`So Dr. Konda provided the Konda Tech Business Plan to Dr. Markovic on October 7, 2009. (Id.)
`However, after Dr. Konda arrived in Los Angeles on October 12, 2009 to present Konda Tech’s
`Business Plan to UCLA/ITA, Dr. Markovic for the first time said to him that he should not expect
`UCLA/ITA to fund Konda Tech, because UCLA/ITA will not fund technologies built outside UCLA.
`(Id.) Dr. Konda now believes that Dr. Markovic invited him to UCLA to get access to the Konda Tech
`Business Plan presentation and to give a seminar to Dr. Markovic’s students including Dr. Wang. (Id.)
`In this process Dr. Markovic, beginning at that time and continuing for years, learned about all details
`of Konda Tech’s technology including the disclosures in the patents-in-suit as well as proprietary
`implementation details, technical know-how, and business know-how and the then customers and
`potential customers and Konda Tech’s interaction with them. (Id.) As a result, Dr. Markovic learned
`about FPGA business models and the know-how of the FPGA industry with respect to interconnect
`technology and its historical evolution. (Id.)
`Dr. Markovic always presented himself as helping Konda Tech get funded and an advisor to
`Konda Tech. (See Konda Decl. at ¶ 30.) Dr. Konda believed that what he disclosed to Dr. Markovic
`was disclosed in confidence and believed that the intentions of Dr. Markovic were to help Konda Tech
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`Konda Technologies, Inc.’s Opposition re
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`because he is a UCLA Professor and was not a competitor at that time. (Id.)
`In June 2010 and August 2010, Dr. Markovic called Dr. Konda pretending that he would help
`build Konda Tech by implementing Konda Tech’s technology by submitting two DARPA proposals
`with the promise that 1) if the DARPA proposals were granted, he would obtain a license from Konda
`Tech; and 2) otherwise if the proposals were rejected by DARPA, he would have his student Dr. Wang
`undertake the chip implementations and would be used for academic purposes only. (See Konda Decl.
`at ¶ 31.) Dr. Konda now knows that Dr. Markovic’s sole aim was to build his own company in FPGA
`using Konda Tech’s technology.
`Dr. Markovic and one or more of his students including Dr. Wang implemented Konda Tech’s
`technology disclosed in the patents-in-suit without permission or a license from Konda Tech. (See
`Konda Decl. at ¶ 32.) In 2010 when Dr. Markovic told Dr. Konda that his students had begun
`implementing Konda Tech’s technology, Dr. Konda told him to stop. (Id.) Dr. Markovic’s answer
`was, as a university professor, he could implement any publicly available technology including any
`technology disclosed in patents or patent applications. (Id.) Dr. Konda told Dr. Markovic that without
`a license from Konda Tech, Konda Tech did not agree that he or UCLA had a right to implement
`Konda Tech’s technology. (Id.)
`Drs. Markovic and Wang clearly knew that they did not have Konda Tech’s permission to
`publish technical papers and Dr. Wang’s Ph.D. dissertation by plagiarizing the Konda Tech Business
`Plan and incorporating portions of the disclosures of the patents-in-suit, and never acknowledging that
`they used Konda Tech’s layouts in their publications, in reckless disregard of Konda Tech’s intellectual
`property rights. (See Konda Decl. at ¶ 33.)
`Dr. Markovic knew that the fruits of his and Dr. Wang’s research by a commercial enterprise,
`namely, Flex Logix, would be a violation of Konda Tech’s intellectual property rights. (See Konda
`Decl. at ¶ 34.) Dr. Markovic himself said in January 2014 at Dr. Bonomi’s house that he may need to
`take a license from Konda Tech. (Id.) However, he did not tell Dr. Konda that plans had already been
`laid to start up a company to compete with Konda Tech. Flex Logix started up only two months later in
`March 2014. (Id.)
`Dr. Markovic always represented to Dr. Konda that he was helping Konda Tech get funded and
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`be an advisor to Konda Tech. (See Konda Decl. at ¶ 35.) Dr. Markovic intended that Konda Tech rely
`on his telling Dr. Konda that he was helping Konda Tech so that Dr. Konda would provide him with the
`Konda Tech Business Plan and technical know-how and customer experience information over a period
`of years based on Dr. Markovic intentionally misrepresenting his true intentions. (Id.)
`Thus, Drs. Markovic and Wang and Flex Logix have systematically misappropriated Konda
`Tech’s intellectual property. (See Konda Decl. at ¶ 37.) This has substantially harmed Konda Tech by
`competing against Konda Tech using Konda Tech’s intellectual property. (Id.) Dr. Wang received a
`distinguished dissertation award (his dissertation advisor being Dr. Markovic) by plagiarizing and
`willfully misappropriating the intellectual property of Konda Tech. (Id.) Additionally, Drs. Markovic
`and Wang won the best paper award at the 2014 ISSCC Conference based on plagiarizing and willfully
`misappropriating Konda Tech’s intellectual property. (Id.) By doing so, Drs. Markovic and Wang
`usurped credit to the breakthrough technology developed by Konda Tech. (Id.)
`Konda Tech has been deprived of business opportunities such as customer licensees and
`revenue by Dr. Markovic’s and Dr. Wang’s co-founding Flex Logix in competition with Konda Tech.
`(See Konda Decl. at ¶ 38.) Drs. Markovic and Wang and the company they co-founded, Flex Logix,
`have caused severe harm in terms of Konda Tech’s loss of revenue and taking credit for the
`breakthroughs in technology that Konda Tech has made, which has negatively impacted Konda Tech’s
`ability to secure licenses from potential customers. (Id.)
`Hence, Konda Tech’s cause of action under California Business & Professions Code Section
`17200, et seq. for unfair business practices against Flex Logix is based on the systematic
`misappropriation and usurpation of Konda Tech’s intellectual property as set forth in Konda Tech’s
`First Amended Complaint. Therefore, that cause of action is not preempted by Federal patent law.
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`D. Konda Tech’s Unfair Business Practices Cause of Action Is Not Barred by the
`Applicable Statute of Limitations.
`Flex Logix contends that Konda Tech’s unfair business practices cause of action under
`California Business & Professions Code Section 17200, et seq. is barred by the four-year statute of
`limitations set forth in Section 17208. However, in Aryeh v. Canon Business Solutions, Inc., 55 Cal.4th
`1185, 292 P.3d 871 (2013), the California Supreme Court held that “Accordingly, we conclude the
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`UCL is governed by common law accrual rules to the same extent as any other statute.”
`Flex Logix’s flawed argument ignores the delayed discovery rule, which states that the accrual
`date of a cause of action is delayed until the plaintiff is aware of his or her injury and its cause. See
`Brandon G. v. Gray, 111 Cal.App.4th 29, 35 (2003) (citing Jolly v. Eli Lilly & Co., 44 Cal.3d 1103,
`1109-1111 (1988)); Bennet v. Hibernia Bank, 47 Cal.2d 540, 559-560 (1956). While contending that
`there was no fraud or unfair business practice, Defendants somehow contend that Konda Tech
`should have then known about the wrongdoing which Defendants now adamantly insist never
`occurred. It was not known because Defendants concealed such facts from Konda Tech.
`Konda Tech was not aware of Dr. Wang’s Ph.D. dissertation and technical paper publications
`by Drs. Markovic and Wang and eventual co-founding of Flex Logix. (See Konda Decl. at ¶ 42.)
`These facts were concealed from Dr. Konda even though Dr. Markovic and Dr. Konda communicated
`occasionally over the period of 2009 through 2014. (Id.) Konda Tech did not discover they concealed
`these facts until December 18, 2015. (Id.)
`Konda Tech only learned of Drs. Markovic and Wang’s above-referenced publications,
`dissertation, and the formation of Flex Logix on December 18, 2015, when Dr. Konda visited the
`University of Toronto and was informed of the same by Dr. Vaughn Betz, a University of Toronto
`professor, when he asked Dr. Konda if Flex Logix was using Konda Tech’s intellectual property. (See
`Konda Decl. at ¶ 52.) It was not until that time that Konda Tech discovered that Drs. Markovic and
`Wang misappropriated the technology that Dr. Konda had disclosed to Dr. Markovic as Proprietary and
`Confidential. (Id.)
`Konda Tech did not discover the unfair and fraudulent acts committed by Drs. Markovic and
`Wang until December 18, 2015. Konda Tech’s Complaint was filed on December 17, 2018 within the
`four-year period of limitations set forth in California Business & Professions Code Section 17208.
`Therefore, Konda Tech’s cause of action under California Business & Professions Code Section 17200,
`et seq. is not time-barred.
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`E. The Founders of Flex Logix Acted Unfairly and Fraudulently With Respect to Konda
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`Tech.
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`Finally, Flex Logix’s Motion requests the Court to order that references to “fraud” in Konda
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`Konda Technologies, Inc.’s Opposition re
`Motion to Dismiss, etc.
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`Tech’s Complaint be stricken based on the contention that such “references to fraud are immaterial and
`impertinent with respect to the claims pled and scandalous and in view of the complaint’s failure to
`plead any alleged fraud with particularity.”
`Dr. Markovic always represented to Dr. Konda that he was helping Konda Tech get funded.
`(See Konda Decl. at ¶ 35.) Dr. Markovic intended that Konda Tech rely on his telli