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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

NEONODE SMARTPHONE LLC, 

Plaintiff, 

v. 

SAMSUNG ELECTRONICS CO. LTD, and 

SAMSUNG ELECTRONICS AMERICA, 

INC., 

Defendants.

Civil Action No. 6:20-cv-00507-ADA 

JURY TRIAL DEMANDED 

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS 

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TABLE OF CONTENTS

Page

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I. INTRODUCTION ............................................................................................................. 1

II. ARGUMENT ..................................................................................................................... 1

A. Neonode’s Willful Infringement Allegations Are Insufficient .............................. 1

B. Neonode Fails to Adequately Allege Indirect Infringement of the ’993 

Patent...................................................................................................................... 6

C. Neonode Fails to Adequately Allege Direct Infringement of the ’993 

Patent...................................................................................................................... 7

III. CONCLUSION .................................................................................................................. 9

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TABLE OF AUTHORITIES 

 Page(s) 

Cases 

AMS, LLC v. Muzzy, LLC, 

No. 18-CV-583-WMC, 2019 WL 1435844 (W.D. Wis. Mar. 29, 2019) ..................................8 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...............................................................................................................6, 8 

Bean v. John Wiley & Sons, Inc., 

No. CV 11-08028-PCT-FJM, 2012 WL 1078662 (D. Ariz. Mar. 30, 2012) .........................3, 4 

Canon, Inc. v. TCL Elecs. Holdings Ltd., 

No. 2:18-CV-00546-JRG, 2020 WL 1478356 (E.D. Tex. Mar. 25, 2020) ................................6 

Canon, Inc. v. TCL Elecs. Holdings Ltd., 

No. 2:18-CV-00546-JRG, Dkt. No. 22 (First. Am. Compl. ) (E.D. Tex. Apr. 

25, 2019) ....................................................................................................................................6 

Disc Disease Solutions Inc. v. VGH Solutions, Inc., 

888 F.3d 1256 (Fed. Cir. 2018)..................................................................................................8 

Dresser, LLC v. VRG Controls, LLC, 

No. 18 C 1957, 2018 WL 10426611 (N.D. Ill. Nov. 28, 2018) .................................................5 

Ferrer v. Chevron Corp., 

484 F.3d 776 (5th Cir. 2007) .....................................................................................................3 

Finjan, Inc. v. Juniper Networks, Inc., 

No. C 17-05659 WHA, 2018 WL 905909 (N.D. Cal. Feb. 14, 2018) .......................................4 

Frac Shack Inc. v. AFD Petroleum (Texas) Inc., 

No. 7:19-cv-00026-DC, 2019 WL 3818049 (W.D. Tex. June 13, 2019) ..................................3 

Halo Elecs., Inc. v. Pulse Elecs., Inc., 

136 S. Ct. 1923 (2016) ...............................................................................................................3 

IpVenture, Inc. v. Cellco P’ship., 

No. C 10–04755, 2011 WL 207978 (N.D. Cal. Jan.21, 2011) ..................................................4 

Lexington Luminance LLC v. TCL Multimedia Tech. Holdings, Ltd., 

No. 16-cv-11458-DJC, 2017 WL 3795769 (D. Mass. Aug. 30, 2017) ......................................5 

McKnight, Inc. v. United Indus. Corp., 

273 F. Supp. 3d 874 (W.D. Tenn. 2017)....................................................................................3 

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TABLE OF AUTHORITIES

(continued) 

Page(s)

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347155-000061

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Meetrix IP, LLC v. Cisco Sys., Inc., 

No. 1:18-cv-309, 2018 WL 8261315 (W.D. Tex. Nov. 30, 2018) ........................................5, 6 

Michigan Motor Techs. LLC v. Volkswagen Aktiengesellschaft, 

No. 19-10485, 2020 WL 3964969 (E.D. Mich. July 13, 2020) .................................................3 

Motiva Patents, LLC v. Sony Corp., 

408 F. Supp. 3d 819, Dkt. No. 1 (Compl. ) (E.D. Tex. Oct. 3, 2018) ........................................7 

OnAsset Intelligence, Inc. v. 7PSolutions, LLC, 

No. 3:12-CV-3709-N, 2013 WL 12125993 (N.D. Tex. Aug. 21, 2013) ...............................3, 6 

Panoptis Patent Mgmt., LLC v. Blackberry Corp., 

No. 216CV00059JRGRSP, 2017 WL 780885 (E.D. Tex. Feb. 10, 2017), 

report and recommendation adopted, No. 216CV00059JRGRSP, 2017 WL 

780880 (E.D. Tex. Feb. 28, 2017) .............................................................................................7 

Pure Parlay, LLC v. Stadium Tech. Grp., Inc., 

No. 219CV00834GMNBNW, 2020 WL 569880 (D. Nev. Feb. 5, 2020) .................................8 

Valinge Innovation AB v. Halstead New England Corp., 

No. 16-1082-LPS-CJB, 2018 WL 2411218 (D. Del. May 29, 2018) ........................................5 

Vasudevan Software, Inc. v. TIBCO Software Inc., 

No. C 11-06638 RS, 2012 WL 1831543 (N.D. Cal. May 18, 2012) .....................................3, 6 

ZitoVault, LLC v. International Bus. Mach. Corp., 

No. 3:16-cv-0962-M, 2018 WL 2971131 (N.D. Tex. Mar. 29, 2018) .......................................4 

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I. INTRODUCTION 

Neonode’s opposition does nothing more than repackage the deficient allegations 

Samsung thoroughly addressed in its motion, which fail to establish a plausible allegation of 

willful infringement by Samsung as to both asserted patents. Indeed, Neonode fails to allege any 

fact that establishes that Samsung actually knew of the ’879 and ’993 patents and that it 

infringes—each a critical omission for a claim of willful infringement. In addition, Neonode’s 

willful infringement claims also fail because Neonode admits that it has not alleged any 

“egregious” conduct required for a claim of willful infringement. 

Neonode’s indirect infringement claim also is deficient. Again, Neonode has not 

presented facts supporting its claim that Samsung had knowledge of the ’993 patent prior to 

filing its Complaint. Moreover, regarding the requirement to plead specific intent, Neonode’s 

allegations simply point to insufficient boilerplate allegations that fail to establish a plausible 

claim of indirect infringement. 

Finally, Neonode’s opposition confirms that the opened padlock graphic in paragraph 61 

of its Complaint is Neonode’s sole allegation as to how the accused products satisfy the claimed 

“edge” or “strip” limitations of claim 1 of the ’993 patent. However, Neonode’s accusations do 

not identify how this graphic satisfies these limitations, including not even mentioning the words 

“edge” or “strip” in its Complaint. Neonode has not provided Samsung fair notice as to these 

allegations because the Complaint fails to state a claim for relief that is plausible on its face. 

II. ARGUMENT 

A. Neonode’s Willful Infringement Allegations Are Insufficient 

Neonode’s opposition fails to establish the basic facts required to plead willful 

infringement as to both asserted patents. 

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First, Neonode’s opposition does not point to a single fact sufficient to allege pre-suit 

knowledge of either the ’879 or ’993 patents. Neonode tacitly concedes this point and instead 

improperly asks the Court to credit its pure speculation and inferences as to Samsung’s pre-suit 

knowledge, including the following: 

 “It is reasonable to infer that Samsung took a license to the '250 Application because 

it was interested in using, and it ultimately did use, the user interface technology 

disclosed in that application and claimed in patents that directly or indirectly issued 

from the '250 Application.” Opp. at 2-3 (emphasis added); 

 “[I]t may reasonably be inferred (and Neonode alleged on information and belief) that 

Samsung and/or its litigation counsel, on an ongoing basis from at least February 

2012 forward, regularly monitored industry press relating to the subject matter of the 

litigation against Apple and undertook substantial research and investigative efforts to 

obtain information pertinent to the subject matter of the litigation against Apple.” Id. 

at 3 (emphasis added) (citation omitted); 

 “It is reasonable to infer that Quinn Emanuel brought the '879 Patent to the attention 

of its other client, Samsung, around this time for potential use to defend Samsung in 

the Apple case.” Id. at 4 (emphasis added); 

 “Given Samsung's familiarity with Neonode's technology, stemming from its license 

to the '250 Application, and given Samsung's motivation to defend itself against 

Apple's claims using Neonode's technology as prior art, it is reasonable to infer the 

Samsung was monitoring Neonode's patent activity at least during the latter half of 

2011 and into the first half of 2012.” Id. at 5 (emphasis added); 

 “Given Samsung's reliance upon the Neonode guide as prior art against Apple's 

patent, and the alleged facts discussed above, it is reasonable to infer that Samsung at 

this time was aware of both the '879 Patent and the published application that would 

later issue as the '993 Patent.” Id. (emphasis added); 

 “It is reasonable to infer that, if it was not already aware of the '879 and '993 Patents 

by that time, Samsung during that month became aware of the '879 and '993 Patents 

in the process of assessing Neonode's portfolio.” Id. (emphasis added). 

See also id. at 3-4. 

All of Neonode’s “reasonable inferences” are based on purely conclusory allegations, not 

on actual facts establishing that Samsung had actual knowledge of the asserted patents prior to 

the filing of the Complaint. Neonode likewise relies on pure speculation to argue that Samsung 

had knowledge of infringement, a separate requirement of willful infringement. Id. at 13-14. 

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Such conclusory allegations cannot form the basis of a plausible claim of willful infringement. 

See, e.g., Michigan Motor Techs. LLC v. Volkswagen Aktiengesellschaft, No. 19-10485, 2020 

WL 3964969, at *5 (E.D. Mich. July 13, 2020) (dismissing willful infringement claim based on 

“purely conclusory” factual allegation “devoid of further factual enhancement”) (citations 

omitted); McKnight, Inc. v. United Indus. Corp., 273 F. Supp. 3d 874, 882 (W.D. Tenn. 2017) 

(dismissing willful infringement claim because the plaintiff provided “little more than 

conclusory allegations of knowledge and infringement . . . , which are not enough to plausibly 

allege the level of ‘egregious[ness]’ required under Halo”) (citing Halo Elecs., Inc. v. Pulse 

Elecs., Inc., 136 S. Ct. 1923, 1936 (2016)); see also OnAsset Intelligence, Inc. v. 7PSolutions, 

LLC, No. 3:12-CV-3709-N, 2013 WL 12125993, at *7 (N.D. Tex. Aug. 21, 2013) (a court does 

not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions”) 

(citing Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)); Vasudevan Software, Inc. v. 

TIBCO Software Inc., No. C 11-06638 RS, 2012 WL 1831543, at *4 (N.D. Cal. May 18, 2012) 

(holding that “a conclusory assertion of ‘willful infringement,’ without supporting facts, does not 

pass muster”). 

Moreover, each of Neonode’s speculative allegations, including knowledge of a patent 

application, “monitored industry press,” or a law firm’s knowledge of a fact1 have all been held 

insufficient to sufficiently plead willful infringement. See Michigan Motor Techs. LLC, 2020 

WL 3964969, at *5; Bean v. John Wiley & Sons, Inc., No. CV 11-08028-PCT-FJM, 2012 WL 

1

 Neonode’s citation to Frac Shack Inc. v. AFD Petroleum (Texas) Inc. in support of its pre-suit 

knowledge allegations is distinguishable. There, the “Plaintiff and at least one Defendant [had] 

an extensive history of patent litigation concerning the same technology and allegedly infringing 

device,” where the court reasoned “[p]atent counsel were involved on all sides who most 

certainly were monitoring the actions of the opposing parties (or were likely to have been doing 

so).” No. 7:19-cv-00026-DC, 2019 WL 3818049, at *5 (W.D. Tex. June 13, 2019). There is no 

such extensive history of patent litigation between Neonode and Samsung. 

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1078662, at *3 (D. Ariz. Mar. 30, 2012)2; IpVenture, Inc. v. Cellco P'ship., No. C 10–04755, 

2011 WL 207978, at *2 (N.D. Cal. Jan.21, 2011) (granting motion to dismiss willful 

infringement claim where plaintiff plead allegations of mere knowledge of a patent application, 

but “no facts to support the claim that Defendants actually had knowledge of the issued patent”). 

In attempting to distinguish Samsung’s reliance on Finjan, Inc. v. Juniper Networks, Inc., 

No. C 17-05659 WHA, 2018 WL 905909, at *3 (N.D. Cal. Feb. 14, 2018), Neonode argues that 

this case is different from Finjan because the allegations in Finjan related to knowledge of a 

patent portfolio, not the asserted patents. Opp. at 10, n.3. But, in the very next sentence, 

Neonode acknowledges that it does not allege actual pre-suit knowledge of the asserted patents, 

only “inferences that may be drawn” from allegations unrelated to the specific asserted patents. 

Id. As such, Neonode’s Complaint fails to adequately allege any pre-suit knowledge of the 

patents by Samsung and, on this basis alone, the Court should dismiss Neonode’s willful 

infringement allegations. 

As to Neonode’s claim that it has at least adequately plead post-complaint knowledge to 

establish a willful infringement claim, Neonode also is incorrect. Neonode’s quotation of 

ZitoVault, LLC v. International Bus. Mach. Corp. is misleading and inapposite because it 

excludes the following important text: “The parties do not dispute that the Complaint states a 

claim for direct and indirect infringement.” No. 3:16-cv-0962-M, 2018 WL 2971131, at *3 

(N.D. Tex. Mar. 29, 2018) (emphasis added). In this case, Samsung disputes the adequacy of 

Neonode’s direct and indirect infringement claims of the ’993 patent. 

2

 Neonode’s attempt to distinguish Bean v. John Wiley & Sons, Inc. further illustrates that the 

allegations are deficient by noting that “it is reasonable to infer that Quinn Emanuel informed 

Samsung of information pertinent to Samsung's defense of the Apple case.” Opp. at 9, n.1. This 

statement is pure speculation and does not establish Samsung’s knowledge. 

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Second, Neonode’s willful infringement allegations also fail because Neonode fails to 

allege any “egregious conduct” by Samsung. Neonode admits in its opposition that egregious 

conduct is a requirement of a willful infringement claim, but argues that it need not plead such 

conduct to maintain its claim at this stage of the case. Opp. at 11. Neonode again is incorrect. 

The cases Neonode cites do not support its argument that it need not plead “egregious” 

conduct for its willful infringement claims to survive a motion to dismiss. Id. at 11-12. 

Moreover, Dresser, LLC v. VRG Controls, LLC, No. 18 C 1957, 2018 WL 10426611 (N.D. Ill. 

Nov. 28, 2018), Lexington Luminance LLC v. TCL Multimedia Tech. Holdings, Ltd., No. 16-cv11458-DJC, 2017 WL 3795769 (D. Mass. Aug. 30, 2017), and Valinge Innovation AB v. 

Halstead New England Corp., No. 16-1082-LPS-CJB, 2018 WL 2411218 (D. Del. May 29, 

2018) are orders from other district courts outside of this District as opposed to Samsung’s 

reliance on Judge Yeakel’s decision in Meetrix IP, LLC v. Cisco Systems, Inc., which dismissed a 

complaint’s willful infringement allegations based upon the plaintiff’s failure to allege 

“egregious” conduct. Meetrix IP, LLC v. Cisco Sys., Inc., No. 1:18-cv-309, 2018 WL 8261315 

(W.D. Tex. Nov. 30, 2018). Also, none of those three cases excuse a plaintiff from establishing 

knowledge of the asserted patent as a requirement of a willful infringement claim, which 

Neonode has failed to do in this case. 

Neonode attempts to explain away Meetrix by stating that Neonode has “sufficiently 

alleged pre-suit knowledge” whereas the plaintiff in Meetrix “failed to allege defendant’s pre-suit 

knowledge of the patents.” Opp. at 12-13, n.4. However, Neonode’s pre-suit knowledge 

allegations are as “fatally deficient” as those in Meetrix, which hinged upon USPTO prosecution 

activities by defendant’s patent-holding subsidiary, examiner citations of plaintiff’s parent 

application of all the asserted patents during the prosecution of defendant’s own patents, and the 

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listing of the parent application in the “References Cited” section on the face of the defendant’s 

resulting patents. Id. at 13, n.4; Meetrix, 2018 WL 8261315, at *2-4. Such fatally deficient 

allegations are arguably more directly related to pre-suit knowledge than Neonode’s similarly 

deficient allegations that Samsung monitored industry press, became aware of the ’879 patent 

through counsel, and Samsung’s lack of interest in Neonode’s entire patent portfolio. Because 

Neonode’s willful infringement allegations are precisely the type against which Iqbal warns, 

they should be dismissed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted); 

OnAsset, 2013 WL 12125993, at *7; Vasudevan, 2012 WL 1831543, at *4. 

B. Neonode Fails to Adequately Allege Indirect Infringement of the ’993 Patent 

Neonode’s conclusory allegations of indirect infringement also are insufficient. First, 

pre-suit knowledge of the asserted patents is a requirement of an indirect infringement claim and, 

as discussed above, Neonode’s conclusory allegations of knowledge are insufficient. See Section 

II.A. For this reason alone, the Court should dismiss Neonode’s indirect infringement claim. 

Second, Neonode also fails to adequately plead the “specific intent” by Samsung to 

infringe, which is improperly based on two Samsung webpages. See Opp. at 17-18; Compl. at ¶ 

65. However, the mere citation to two pieces of instructional marketing material does not 

establish active intent to induce infringement. Notably, the cases that Neonode cites in support 

of allegations on this point involved plaintiffs that plead more facts than Neonode provided in its 

own Complaint. See Canon, Inc. v. TCL Elecs. Holdings Ltd., No. 2:18-CV-00546-JRG, Dkt. 

No. 22 (First. Am. Compl. at ¶¶ 76-87) (E.D. Tex. Apr. 25, 2019); Canon, Inc. v. TCL Elecs. 

Holdings Ltd., No. 2:18-CV-00546-JRG, 2020 WL 1478356 (E.D. Tex. Mar. 25, 2020) (plaintiff 

identified product user guide, product quick start guide, three blog posts, a product webpage, and 

allegations that defendants “creat[ed] and disseminat[ed] promotional and marketing materials, 

supporting materials, instructions, product manuals, and/or technical information relating to such 

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products with knowledge and the specific intent that their efforts will result in the direct 

infringement”); Motiva Patents, LLC v. Sony Corp., 408 F. Supp. 3d 819, Dkt. No. 1 (Compl. at 

¶68) (E.D. Tex. Oct. 3, 2018) (plaintiff plead defendant “took active steps, directly and/or 

through contractual relationships with others, with the specific intent to cause them to use the 

accused products in a manner that infringes . . . . Such steps by Defendant included, among other 

things, advising or directing customers and end-users to use the accused products in an infringing 

manner; advertising and promoting the use of the accused products in an infringing manner; 

and/or distributing instructions that guide users to use the accused products in an infringing 

manner”); Panoptis Patent Mgmt., LLC v. Blackberry Corp., No. 216CV00059JRGRSP, 2017 

WL 780885, at *5 (E.D. Tex. Feb. 10, 2017), report and recommendation adopted, No. 

216CV00059JRGRSP, 2017 WL 780880 (E.D. Tex. Feb. 28, 2017) (plaintiff plead defendant 

“provide[d] manuals and support to resellers and end-use customers regarding the use and 

operation of [the accused] products,” including “through its website . . . by telephone, and 

through other means of communication”) (citation omitted). 

Here, Neonode has failed to plead either facts sufficient to support Samsung’s pre-suit 

knowledge of the asserted patents or any specific intent by Samsung to infringe any claim of the 

’993 patent, and its baseless claims should be dismissed. 

C. Neonode Fails to Adequately Allege Direct Infringement of the ’993 Patent 

Neonode’s direct infringement allegations of claim 1 of the ’993 patent fail because 

Neonode does not allege the accused products have the required “strip along at least one edge of 

the display screen,” or that the “opened padlock graphic” is located within such a strip. 

Neonode’s opposition acknowledges that “the opened padlock graphic” in paragraph 61 of its 

Complaint is the sole source of its allegations as to the “edge” and “strip” allegations. Opp. at 

18-19. However, Neonode’s claim that this graphic is sufficient to put Samsung on notice of 

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Neonode’s allegations is incorrect. Neonode’s Complaint never once uses the words “strip” or 

“edge” and fails to identify how the graphic in paragraph 61 satisfies those limitations in claim 1. 

See generally Compl. This does not constitute fair notice of the allegations as required under 

Iqbal. 

Neonode’s reliance on Disc Disease Solutions Inc. v. VGH Solutions, Inc., 888 F.3d 

1256, 1260 (Fed. Cir. 2018) does not excuse Neonode’s failure to adequately plead the “strip” 

and “edge” limitations. As other courts have recognized, “Disc Disease ‘doesn’t set a floor for 

the level of detail required to plead direct patent infringement. It’s simply one example of where 

pleadings were sufficient.’” Pure Parlay, LLC v. Stadium Tech. Grp., Inc., No. 

219CV00834GMNBNW, 2020 WL 569880, at *3 (D. Nev. Feb. 5, 2020) (citations omitted). 

Moreover, courts have dismissed direct infringement claims where a plaintiff has specifically 

identified its allegations as to certain claim limitations, but has remained silent as to other 

limitations. See, e.g., AMS, LLC v. Muzzy, LLC, No. 18-CV-583-WMC, 2019 WL 1435844, at 

*1-2 (W.D. Wis. Mar. 29, 2019) (dismissing direct infringement claim where claim element 

“conspicuously absent” from complaint without “any affirmative assertion” by plaintiff, even 

when product photographs were plead). 

Indeed, this is not a case, as Neonode suggests, where the parties have a disagreement as 

to claim scope that will be addressed by the Court during claim construction, but a total failure of 

Neonode to identify its allegations as to how the accused products perform the “strip” and 

“edge” limitations of claim 1 of the ’993 patent. Having failed to meet its burden in pleading 

this claim, the proper course is to dismiss Neonode’s direct infringement allegation as to the ’993 

patent. 

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III. CONCLUSION 

For the reasons stated in its Motion and herein, Samsung respectfully requests that the 

Court dismiss Neonode’s willful infringement claims as to both asserted patents, along with its 

claims of indirect and direct infringement as to the ’993 patent. 

Dated: November 6, 2020 Respectfully submitted, 

/s/ John M. Guaragna 

John M. Guaragna 

Texas Bar No 24043308 

DLA PIPER LLP (US) 

401 Congress Avenue, Suite 2500 

Austin, TX 78701-3799 

Tel: 512.457.7125 

Fax: 512.457.7001 

john.guaragna@dlapiper.com 

Mark D. Fowler (Pro Hac Vice) 

Erik Fuehrer (Pro Hac Vice) 

DLA PIPER LLP (US) 

2000 University Ave. 

East Palo Alto, CA 94303-2214 

Tel: 650.833.2000 

Fax: 650.833.2001 

Tiffany Miller (Pro Hac Vice) 

Susan Acquista (Pro Hac Vice) 

DLA PIPER LLP (US) 

401 B Street, Suite 1700 

San Diego, CA 92101-4297 

Tel: 619.699.2700 

Fax: 619.699.2701 

Benjamin Mueller (Pro Hac Vice) 

DLA PIPER LLP (US) 

444 West Lake Street, Ste. 900 

Chicago, IL 60606 

Tel: 312.368.4000 

Fax: 312.236.7516 

ATTORNEYS FOR SAMSUNG ELECTRONICS 

CO. LTD, and SAMSUNG ELECTRONICS 

AMERICA, INC.

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CERTIFICATE OF SERVICE 

The undersigned certifies that on this 6th day of November 2020, all counsel of record 

who are deemed to have consented to electronic service are being served with a copy of this 

document through the Court’s CM/ECF system under Local Rule CV-5(b)(1). Any other 

counsel of record will be served by a facsimile transmission and/or first class mail. 

/s/ John M. Guaragna 

John M. Guaragna 

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