Case 6:21-cv-01210-ADA Document 57 Filed 06/28/22 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`6:21-CV-01210-ADA
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`LBT IP II, LLC,
` Plaintiff
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`v.
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`UBER TECHNOLOGIES, INC.
` Defendant
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`§
`§
`§
`§
`§
`§
`§
`§
`
`
`ORDER DENYING-IN-PART AND GRANTING-IN-PART DEFENDANT’S MOTION
`TO DISMISS
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`Before the Court is Defendant Uber Technologies, Inc.’s (“Uber”) Motion to Dismiss
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`Plaintiff LBT IP II, LLC’s (“LBT”) direct and induced infringement claims pursuant to Federal
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`Rule of Civil Procedure 12(b)(6). ECF No. 18. LBT filed its Response on February 10, 2022. ECF
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`No. 27. Uber filed its Reply on February 17, 2022. ECF No. 28. After careful consideration of the
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`briefs and applicable law, the Court GRANTS-IN-PART and DENIES-IN-PART Uber’s
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`Motion.
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`I.
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`FACTUAL BACKGROUND
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`On November 19, 2021, LBT filed suit against Uber, accusing Uber of infringing four
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`patents directed to GPS location and monitoring technology. ECF No. 1 ¶¶ 38–41. LBT alleges
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`that Uber directly infringes, jointly infringes, and induces infringement of U.S. Patent No.
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`7,728,724 (“the ’724 Patent”); U.S. Patent No. 7,598,855 (“the ’855 Patent”); U.S. Patent No.
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`8,531,289 (“the ’289 Patent”); and U.S. Patent No. 8,224,355 (“the ’355 Patent”) through its
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`eponymous ride-hailing application. Id. ¶¶ 60, 76, 93, 109. Uber moves to dismiss each count
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`under Federal Rule of Civil Procedure 12(b)(6). ECF No. 18.
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`Case 6:21-cv-01210-ADA Document 57 Filed 06/28/22 Page 2 of 13
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`II.
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`LEGAL STANDARD
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`A. Failure to state a claim.
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`A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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`claim upon which relief can be granted is “a purely procedural question not pertaining to patent
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`law,” so the law of the Fifth Circuit controls. McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356
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`(Fed. Cir. 2007). When considering such motions, this Court “accepts all well-pleaded facts as
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`true, views them in the light most favorable to the plaintiff, and draws all reasonable inferences in
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`the plaintiff's favor.” Johnson v. BOKF Nat’l Ass’n, 15 F.4th 356, 361 (5th Cir. 2021).
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`Rule 12(b)(6) requires that a complaint contain sufficient factual matter to “state a claim
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`to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this factual plausibility standard, the
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`plaintiff must plead “factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged,” based on “more than a sheer possibility that a
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`defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a cause of action,
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`supported by mere conclusory statements, do not suffice.” Id. In resolving a motion to dismiss for
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`failure to state a claim, the question is “not whether [the plaintiff] will ultimately prevail, . . . but
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`whether [the] complaint was sufficient to cross the federal court’s threshold.” Skinner v. Switzer,
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`562 U.S. 521, 530 (2011). “The court’s task is to determine whether the plaintiff has stated a legally
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`cognizable claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star
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`Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Iqbal, 556
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`U.S. at 678).
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`Case 6:21-cv-01210-ADA Document 57 Filed 06/28/22 Page 3 of 13
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`B. Induced infringement.
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`Section 271(b) of the Patent Act provides that “[w]hoever actively induces infringement of
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`a patent shall be liable as an infringer.” 35 U.S.C. § 271(b). To succeed on such a claim, the
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`patentee must show that the accused infringer (1) knowingly induced direct infringement and (2)
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`possessed “specific intent” to induce that infringement. See MEMC Electr. Materials, Inc. v.
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`Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1378 (Fed. Cir. 2005). Willful blindness can
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`satisfy the knowledge requirement, Warsaw Orthopedic, Inc. v. NuVasive, Inc., 824 F.3d 1344,
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`1347 (Fed. Cir. 2016), and circumstantial evidence may suffice to prove specific intent, MEMC,
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`420 F.3d at 1378.
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`To state a claim for relief for induced patent infringement, “a complaint must plead facts
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`plausibly showing that the accused infringer ‘specifically intended [another party] to infringe [the
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`patent] and knew that the [other party]’s acts constituted infringement.’” Lifetime Indus., Inc. v.
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`Trim-Lok, Inc., 869 F.3d 1372, 1376–77 (Fed. Cir. 2017) (quoting In re Bill of Lading
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`Transmission & Processing Sys. Pat. Litig., 681 F.3d 1323, 1336 (Fed. Cir. 2012) (hereinafter
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`“Bill of Lading”)). “[T]here can be no inducement or contributory infringement without an
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`underlying act of direct infringement.” Joao Control & Monitoring Sys., LLC v. Protect Am., Inc.,
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`No. 1:14-cv-00134-LY, 2015 U.S. Dist. LEXIS 74262, 2015 WL 3513151, at *3 (W.D. Tex.
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`Mar. 24, 2015). “To state a claim for indirect infringement . . . a plaintiff need not identify a
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`specific direct infringer if it pleads facts sufficient to allow an inference that at least one direct
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`infringer exists.” Bill of Lading, 681 F.3d at 1336.
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`III. ANALYSIS
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`Uber moves for dismissal by asserting that LBT’s Complaint fails to meet the minimum
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`pleading requirements imposed by Twombly and Iqbal. Uber contends LBT’s direct infringement
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`claims do not sufficiently indicate how the Asserted Patents are infringed. Uber further contends
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`LBT has not shown the requisite direction or control for its joint infringement claims. Lastly, Uber
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`argues LBT’s induced infringement claims must be dismissed because the Complaint does not
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`plead pre-suit knowledge and does not adequately plead the underlying direct infringement. For
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`the reasons stated below, the Court finds LBT’s pleading sufficient on direct, joint, and post-suit
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`induced infringement, and accordingly declines to dismiss LBT’s Complaint on those counts. In
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`accordance with the Court’s usual practice, the Court dismisses LBT’s pre-suit inducement claim
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`and grants LBT leave to amend its Complaint to re-allege pre-suit inducement after beginning fact
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`discovery.
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`A. LBT sufficiently pleads direct infringement.
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`Liability for direct infringement arises under 35 U.S.C. § 271(a) when a party, without
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`authorization, “makes, uses, offers to sell, or sells any patented invention, within the United States
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`or imports into the United States any patented invention during the term of the patent.” The
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`activities set forth in § 271(a) do not result in direct infringement unless the accused product
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`embodies the complete patented invention. See Rotec Indus., Inc. v. Mitsubishi Corp., 215 F.3d
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`1246, 1252 & n.2 (Fed. Cir. 2000). Therefore, to state a claim of direct infringement sufficient to
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`withstand a motion to dismiss, a plaintiff must plead facts that plausibly suggest that the accused
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`product meets each limitation of the asserted claim(s). See TMI Sols. LLC v. Bath & Body Works
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`Direct, Inc., C.A. No. 17-965-LPS-CJB, 2018 U.S. Dist. LEXIS 167648, 2018 WL 4660370, at
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`*9 (D. Del. Sept. 28, 2018). The Federal Circuit has provided guidance on pleading direct
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`infringement under Iqbal / Twombly. See Disc Disease Sols. Inc. v. VGH Sols., Inc., 888 F.3d 1256
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`(Fed. Cir. 2018). In Disc Disease, the Federal Circuit reversed the district court’s dismissal of
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`plaintiff’s direct infringement claims, finding that the plaintiff’s allegations were sufficient under
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`the plausibility standard of Iqbal and Twombly because the complaint specifically identified the
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`three accused products and alleged that the accused products met “each and every element of at
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`least one claim” of the asserted patents, either literally or equivalently. Disc Disease, 888 F.3d at
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`1260.
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`Uber argues that the Complaint fails to properly map the allegations to the language of the
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`’724, ’855, and ’289 Patents. See ECF No. 18 at 6-11. But plaintiffs are not required to use the
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`exact same terms as the asserted claim when alleging infringement by the accused products.
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`Rather, plaintiffs only need to plead “factual content that allows the court to draw the reasonable
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`inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (emphasis
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`added). The Court finds LBT has satisfied the minimum pleading requirements for its direct
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`infringement claims.
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`1) The ’724 Patent
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`
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`LBT sufficiently pleads direct infringement of the ’724 Patent. Uber argues “LBT does not
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`identify any accused ‘reference signal,’ ‘a first transmitter/receiver station,’ or ‘a second
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`transmitter/receiver station.’” ECF No. 18 at 7. But the claim terms need not be expressly
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`identified to allow the Court to reasonably infer Uber’s infringement from the Complaint.
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`In the Complaint, LBT alleges:
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`[T]he Uber driver’s smartphone communicates and sends position
`information, in addition to GPS information, over a mobile network
`using multiple cell towers. Location of the driver’s smartphone is
`determined by GPS by comparing measurements from two or more
`GPS satellites to the smartphone, and between the GPS satellites and
`the earth.
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`ECF No. 1 ¶ 67. LBT also alleges “the Uber driver’s smartphone calculates location data even
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`when line-of-sight between the Uber driver’s smartphone and GPS satellites are impaired.” Id.
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`¶ 68. These allegations address the following steps of the method in Asserted Claim 13:
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`location
`triangulate
`to
`reference signal
`communicating a
`information utilizing a first transmitter/receiver station and a second
`transmitter/receiver station;
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`first
`a
`signal,
`system
`a global positioning
`receiving
`transmitter/receiver station signal, and a second transmitter/receiver
`station signal;
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`calculating location data responsive to the global positioning system
`signal, the first transmitter/receiver station signal, the second
`transmitter/receiver station signal, and the reference signal without
`line-of-sight between a global positioning system satellite and the
`tracked device;
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`calculating the location data of the tracking device resulting from a
`comparison of measurements from gps satellites to the tracking
`device, measurements of distances between two or more gps
`satellites, and measurements of relative orientations of the two or
`more gps satellites, the tracking device, and earth
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`’724 Patent at 9:55-62, 10:1-10.
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`Comparing the Complaint and Asserted Claim 13, the Court can reasonably infer the
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`“reference signal” is a signal from the driver’s phone and the “transmitter/receiver stations” are
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`the “multiple cell towers.” Accordingly, the Court finds these terms to be sufficiently identified.
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`Uber further contends LBT does not adequately explain the above steps. See ECF No. 18
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`at 7-8. In making this argument, Uber attempts to compare this case to De La Vega v. Microsoft
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`Corp. This comparison is unavailing. In that case, the plaintiff only presented the claim language
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`and three screenshots. See De La Vega v. Microsoft Corp., W-19-CV-00617-ADA, 2020 WL
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`3528411, at *6 (W.D. Tex. Feb. 7, 2020). In contrast, the above language quoted from the
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`Complaint suggests how Uber triangulates location information, and it is sufficiently aligned with
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`the language from Asserted Claim 13. Further, a plaintiff is not required to prove its case at the
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`pleading stage. This task is more appropriately reserved for infringement contentions. At the
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`pleading stage, “[t]he court’s task is to determine whether the plaintiff stated a legally cognizable
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`claim that is plausible, not to evaluate the plaintiff’s likelihood of success.” Lone Star Fund, 594
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`F.3d at 387; see also ID Image Sensing LLC v. Omnivision Technologies, Inc., No. 20-cv-136-
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`RGA, 2020 U.S. Dist. LEXIS 220189, at *16 (D. Del. Nov. 24, 2020) (holding that it is
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`unnecessary for a complaint to “establish” or “prove” each element of an asserted claim is met;
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`instead, a plaintiff must only allege facts that “plausibly” indicate that the accused products contain
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`each of the limitations found in the asserted claim). Thus, LBT adequately pleads direct
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`infringement of the ’724 Patent.
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`2) The ’855 Patent
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`LBT also sufficiently pleads direct infringement of the ’855 Patent. Uber argues “LBT fails
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`to identify an accused ‘fourth signal’ or ‘adjacent tracking device’ or explain ‘who’ allegedly
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`transmits a ‘fourth signal’ from an ‘adjacent tracking device’ or allege whether (and if so, ‘how’)
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`the required step is performed at all.” ECF No. 18 at 9. Further, Uber contends LBT fails to plead
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`whether Uber “determin[es] which of the first signal, the second signal, the third signal, and the
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`fourth signal match defined selection criteria stored in the tracking device.” Id. The Court
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`disagrees.
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`LBT alleges “the Uber driver’s smartphone also receives signals from multiple cell towers
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`that have been pinged by the Uber driver’s smartphone by the driver using the Uber Driver
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`Application to initiate communication to which cell towers respond.” ECF No. 1 ¶ 83. LBT also
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`alleges “the Uber driver’s smartphone determines its location at least in part by utilizing a GPS
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`satellite signal and/or cell tower signal(s).” Id. ¶ 84. These allegations correspond to the third,
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`fourth, and fifth steps of Asserted Claim 11:
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`transmitting to the tracking device . . . a fourth signal from an
`adjacent tracking device;
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`determining which of the first signal, the second signal, the third
`signal, and the fourth signal match defined selection criteria stored
`in the tracking device;
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`determining location data in part based on a signal selected utilizing
`the defined selection criteria
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`’855 Patent at 17:43-54.
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`
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`It can be reasonably inferred that the “adjacent tracking device” may be a cell tower that
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`transmits a “fourth signal” and that the Uber driver’s smartphone determines which signal matches
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`“defined selection criteria” before it uses the signal to determine its location. LBT is not required
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`to allege infringement by reciting the precise language of the asserted claim. Moreover, “the
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`Federal Rules of Civil Procedure do not require a plaintiff to plead facts establishing that each
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`element of an asserted claim is met.” Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1350 (Fed.
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`Cir. 2018) (quoting Bill of Lading, 681 F.3d at 1335). A plaintiff “need only plead facts sufficient
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`to place the alleged infringer on notice as to what he must defend.” McZeal, 501 F.3d at 1357.
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`LBT pleads sufficient facts here.
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`3) The ’289 Patent
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`LBT also meets the pleading standards for its claim of direct infringement of the ’289
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`Patent. Uber argues LBT does not adequately allege that a “second tracking device” containing a
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`“second transceiver” exists. See ECF No. 18 at 11. Uber also asserts LBT does not adequately
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`explain who uses the “second tracking device” and how it determines and communicates the
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`location of the “first tracking device.” See id. This argument fails for the same reasons as Uber’s
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`prior arguments.
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`In the Complaint, LBT alleges “the Uber Platform also comprises a second tracking device
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`which transmits and receives signals and thus contains at least one transceiver that is the second
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`transceiver.” ECF No. 1 ¶ 99. Once an Uber driver’s identification information is verified, LBT
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`states “the Uber Platform then transmits a signal which comprises location information of the first
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`tracking device to the user’s smartphone.” See id. ¶ 100. Asserted Claim 8 consists of a system in
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`which “a second tracking device having a second transceiver . . . is configured to . . . determine
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`location coordinates of the first tracking device” and “communicate a second reply signal that
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`comprises the location coordinates to a monitoring station connected to the user terminal in part
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`responsive to verification of the first identification code.” ’289 Patent 17:3-13.
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`The Court can reasonably infer that the “second tracking device” is the Uber Platform and
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`that Uber uses it to locate the “first tracking device” and communicate its position to the user. This
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`is sufficient. As noted above, LBT need not prove its case at this early stage.
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`B. LBT sufficiently pleads joint infringement.
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`To successfully plead joint infringement, plaintiffs must present factual allegations leading
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`to a “reasonable inference that all steps of the claimed method are performed and either (1) one
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`party exercises the requisite “direction or control” over the others’ performance or (2) the actors
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`form a joint enterprise such that performance of every step is attributable to the controlling party.”
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`Lyda v. CBS Corp., 838 F.3d 1331, 1339 (Fed. Cir. 2016). Uber argues LBT must plead joint
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`infringement because its infringement allegations require multiple actors. See ECF No. 18 at 12.
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`Uber then suggests LBT has failed to satisfy this requirement because it neither avers that “Uber
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`makes the ‘smartphone’ alleged to perform multiple claim elements in every Asserted Patent, nor
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`that Uber directs or controls the manufacturers of alleged ‘smartphones.’” Id. This showing is not
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`required to plead the requisite direction or control.
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`
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`LBT adequately alleges Uber’s control. LBT asserts Uber operates and controls its rider
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`and driver applications. See ECF No. 1 ¶ 25. LBT further explains that “[b]ecause Uber’s mobile
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`applications must be installed on a mobile computing device, Defendant controls how its riders
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`and drivers use the infringing features of Uber’s Platform and products and perform infringing
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`steps of the methods for ride-hailing.” Id. ¶ 28. Those allegations sufficiently allege that Uber
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`developed and maintains a mobile application that riders and drivers use, and in doing so directs
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`and controls all activity. That plausibly alleges direction and control through the application that
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`Uber provides.
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`LBT references multiple cases to support the sufficiency of its allegations. In Quartz Auto
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`Technologies LLC v. Lyft, Inc., this Court found Quartz’s allegations of Lyft’s direction and
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`control sufficient even though certain steps of the method claims were “performed by the Driver
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`app running on the driver's mobile phone, while the remaining steps [were] performed on Lyft's
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`server(s).” Quartz Auto Techs. LLC v. Lyft, Inc., No. 1:20-CV-00719-ADA, 2021 WL 1177886, at
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`*3 (W.D. Tex. Mar. 29, 2021). Uber correctly points out that the Court did not address the
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`argument presented here. See ECF No. 28 at 7. Lyft argued Quartz’s allegations of direct
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`infringement were unsuccessful because it did not plead direction and control over the rider app,
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`not because Lyft does not manufacture or sell smartphones. See Quartz, 2021 WL 1177886, at *3.
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`Nonetheless, Quartz supports LBT’s position. Quartz found the plaintiff adequately pleaded
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`direction and control where the defendant operated and controlled a rideshare app and where the
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`driver’s mobile phone allegedly performed some steps of the method claims. The same is true here.
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`LBT also points to Proxense, LLC v. Target Corp. In Proxense, this Court held a Target
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`customer could indirectly control an element in a system claim because the system would not be
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`put into service without the actions of the customer. Proxense, LLC v. Target Corp., No. 6:20-CV-
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`879-ADA, 2021 WL 3824690, at *3 (W.D. Tex. July 28, 2021). The Court agrees with LBT that
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`this reasoning applies to the instant case. It is plausible that, as LBT alleges, Uber causes infringing
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`activity of smartphones through its rider and driver apps. But-for Uber’s apps, the alleged
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`infringing activity would not occur. Therefore, it is plausible that Uber indirectly controls the
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`infringing activity of smartphones.
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`Uber’s reliance on Ruby Sands LLC v. American National Bank of Texas cannot save its
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`case. The court found Ruby Sands “plainly fail[ed] to state a claim for relief that is plausible on its
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`face” because it made “no factual allegations that even remotely suggest that CNB, a bank, makes,
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`uses, offers to sell, or sells mobile devices.” Ruby Sands LLC v. Am. Nat’l Bank of Tex., No. 2:15-
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`cv-1955-JRG, 2016 WL 3542430, at *4 (E.D. Tex. June 28, 2016). But the asserted claims in that
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`case were directed to devices. Id. at *1. The claims in this case are system and method claims.
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`Here, LBT does not accuse smartphones of infringement. Rather, it accuses “the functionality that
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`Uber provides on them through its mobile applications.” ECF No. 27 at 13. Accordingly, it does
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`not matter whether Uber manufactures or sells smartphones, contrary to what Uber suggests.
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`From the Complaint, the Court can reasonably infer Uber exercises the requisite control
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`over smartphones. Thus, LBT sufficiently pleads joint infringement.
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`C. LBT’s induced infringement claim.
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`i. LBT did not sufficiently plead pre-suit induced infringement.
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`The parties dispute whether LBT’s Complaint plausibly alleges pre-suit inducement. Uber
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`argues that LBT failed to allege pre-suit knowledge of the Asserted Patents, entitling Uber to
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`dismissal of the claim. ECF No. 18 at 14. LBT, for its part, does not dispute Uber’s characterization
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`of its Complaint. Rather, LBT asks the Court to grant it leave to amend its Complaint with respect
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`to pre-suit conduct after beginning fact discovery. ECF No. 27 at 13. The Court agrees and will
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`follow its “usual practice” of dismissing the pre-suit inducement claims while allowing LBT to
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`amend its Complaint after beginning fact discovery. BillJCo, LLC v. Apple Inc., No. 6:21-CV-
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`00528-ADA, 2022 WL 299733, at *9 (W.D. Tex. Feb. 1, 2022) (noting that “it may be impossible
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`for [plaintiffs] to allege any pre-suit knowledge without fact discovery”).
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`ii. Uber’s post-suit inducement arguments were waived.
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`Uber moved for dismissal of LBT’s induced infringement claims, but it did so only for its
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`pre-suit inducement claims. In its Motion, Uber’s sole grounds for dismissal on inducement were
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`that (1) LBT failed to plead pre-suit knowledge, and (2) LBT did not adequately plead underling
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`acts of indirect infringement. First, as discussed above, the Court is dismissing LBT’s pre-suit
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`claims and granting LBT leave to amend and add those claims back after the benefit of fact
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`discovery. Second, LBT’s Complaint pleads sufficient facts to state a plausible claim for direct
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`infringement. See supra Section III.A. That analysis applies equally to the inducement claim to
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`establish underlying acts of direct infringement. See Bill of Lading, 681 F.3d at 1333 (noting that
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`a complaint must also plausibly allege direct infringement to survive a motion to dismiss an
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`induced infringement claim).
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`Yet Uber in its Reply, for the very first time, argues for dismissal of LBT’s post-suit
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`induced infringement claims. Because these arguments were plainly absent in Uber’s original
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`Motion, the Court finds that they are waived. Flores v. AT&T Corp., 2018 U.S. Dist. LEXIS
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`224256, at *25–*26 (W.D. Tex. Nov. 8, 2018) (stating “Fifth Circuit and the courts within it have
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`held that arguments raised for the first time in a reply brief are generally waived”).
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`IV. CONCLUSION
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`For the foregoing reasons, the Court finds that LBT has adequately pleaded direct
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`infringement, joint infringement, and post-suit inducement. Uber’s Motion on those grounds are
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`therefore DENIED. LBT’s pre-suit
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`inducement claims are DISMISSED WITHOUT
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`PREJUDICE, and it is GRANTED leave to amend its Complaint to re-plead those allegations
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`after the benefit of fact discovery.
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`Case 6:21-cv-01210-ADA Document 57 Filed 06/28/22 Page 13 of 13
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`SIGNED this 28th day of June, 2022.
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