IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION 

FREEDOM PATENTS LLC, 

Plaintiff, 

CIVIL ACTION NO. 4:23-cv-303-ALM 

v. 

DISH NETWORK CORPORATION, DISH 

NETWORK L.L.C., and DISH NETWORK 

SERVICE L.L.C., 

Defendants. 

DEFENDANTS DISH NETWORK CORPORATION, DISH NETWORK L.L.C., AND 

DISH NETWORK SERVICE L.L.C’S MOTION FOR 

PARTIAL DISMISSAL PURSUANT TO FED. R. CIV. P. 12(b)(6) 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 1 of 18 PageID #: 136
TABLE OF CONTENTS

Page

 -iI. INTRODUCTION ............................................................................................................. 1 

II. BACKGROUND ............................................................................................................... 1 

III. LEGAL STANDARDS ..................................................................................................... 3 

IV. ARGUMENT ..................................................................................................................... 5 

A. Freedom Fails To Allege Any Basis For Pre-Suit Indirect Infringement. ............. 5 

B. Freedom’s Inducement Allegations Fail to Adequately Allege Any PostSuit Affirmative Acts Taken With Specific Intent To Indirectly Infringe. ............ 7 

C. Freedom Fails To Adequately Plead Willful Infringement. .................................. 9 

V. CONCLUSION ................................................................................................................ 11 

 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 2 of 18 PageID #: 137
 -iTABLE OF AUTHORITIES 

 Page(s) 

Cases 

Affinity Labs of Tex., LLC v. Toyota Motor N. Am., Inc., 

No. W:13-CV-365, 2014 U.S. Dist. LEXIS 90379 (W.D. Tex. May 12, 2014)........................6 

In re Apple Inc., 

52 F.4th 1360 (Fed. Cir. 2022) ..................................................................................................1 

Aro Mfg. Co. v. Convertible Top Replacement Co., 

377 U.S. 476 (1964) ...................................................................................................................4 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...................................................................................................................3 

BASF Plant Sci., LP v. Commonwealth Sci. & Indus. Rsch. Organisation, 

28 F.4th 1247 (Fed. Cir. 2022) ............................................................................................5, 10 

Bayer Healthcare LLC v. Baxalta Inc., 

989 F.3d 964 (Fed. Cir. 2021)....................................................................................................9 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) ...................................................................................................................6 

Billjco v. Cisco Sys., 

No. 2:21-CV-00181-JRG, 2021 U.S. Dist. LEXIS 251455 (E.D. Tex. Nov. 30, 

2021) ..........................................................................................................................................9 

Commil USA, LLC v. Cisco Sys., Inc., 

575 U.S. 632 1920, 1926 (2015) ................................................................................................4 

Core Wireless Licensing S.A.R.L. v. Apple Inc., 

No. 6:14-CV-751-JDL, 2015 WL 5000397 (E.D. Tex. June 3, 2015) ..................................4, 7 

DSU Med. Corp. v. JMS Co., 

471 F.3d 1293 (Fed. Cir. 2006)..................................................................................................4 

Global-Tech Appliances, Inc. v. SEB S.A., 

563 U.S. 754 (2011) ...............................................................................................................4, 8 

Gustafson, Inc. v. Intersystems Indus. Prods., Inc., 

897 F.2d 508 (Fed. Cir. 1990)....................................................................................................5 

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

579 U.S. 93 (2016) ...................................................................................................................10 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 3 of 18 PageID #: 138
 -iiM & C Innovations, LLC v. Igloo Prods. Corp., 

C.A. No. 4:17-CV-2372, 2018 WL 4620713 (S.D. Tex. July 31, 2018) .................................11 

Mallinckrodt, Inc. v. E-Z-EM Inc., 

670 F. Supp. 2d 349 (D. Del. 2009) ...........................................................................................5 

Manville Sales Corp. v. Paramount Sys., Inc., 

917 F.2d 544 (Fed. Cir. 1990)....................................................................................................4 

Motiva Pat., LLC v. Sony Corp., 

408 F. Supp. 3d 819 (E.D. Tex. 2019) .......................................................................................7 

Plano Encryption Techs., LLC v. Alkami Tech., Inc., 

C.A. No. 2:16-cv-1032-JRG, 2017 U.S. Dist. LEXIS 221765 (E.D. Tex. Sep. 

22, 2017) ..................................................................................................................................10 

Proxyconn Inc. v. Microsoft Corp., 

No. SACV 11–1681 (ANx), 2012 WL 1835680 (C.D. Cal. May 16, 2012) .............................4 

Ravgen, Inc. v. Quest Diagnostics Inc., 

No. 2:21-cv-09011-RGK-GJS, 2022 U.S. Dist. LEXIS 104409 (C.D. Cal. Jan. 

18, 2022) ..........................................................................................................................5, 7, 11 

In re Seagate Tech., LLC, 

497 F.3d 1360 (Fed. Cir. 2007), overruled on other grounds by, 579 U.S. 93 

(2016) .......................................................................................................................................10 

Sonos, Inc. v. Google LLC, 

591 F. Supp. 3d 638 (N.D. Cal. 2022) .......................................................................................5 

Tegal Corp. v. Tokyo Electron Co., 

248 F.3d 1376 (Fed. Cir. 2001)..................................................................................................8 

Tierra Intelectual Borinquen, Inc. v. ASUS Comput. Int'l, Inc., 

No. 2:13-CV-38-JRG, 2014 U.S. Dist. LEXIS 28249 (E.D. Tex. Mar. 3, 2014) ..................8, 9 

VLSI Tech., LLC v. Intel Corp., 

C.A. No. 18-966-CFC, 2019 U.S. Dist. LEXIS 49801 (D. Del. Mar. 26, 2019) .................7, 10 

WCM Indus., Inc. v. IPS Corp., 

721 F. App’x 959 (Fed. Cir. 2018) ............................................................................................5 

Williamson v. Citrix Online, LLC, 

792 F.3d 1339 (Fed. Cir. 2015)................................................................................................10 

ZapFraud, Inc. v. Barracuda Networks, Inc., 

528 F. Supp. 3d 247 (D. Del. 2021) ...........................................................................................5 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 4 of 18 PageID #: 139
 -iiiStatutes 

35 U.S.C. § 27l(b) ............................................................................................................................4 

35 U.S.C. § 27l(c) ............................................................................................................................4 

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I. INTRODUCTION 

Freedom’s1 complaint fails to state a claim for pre-suit indirect infringement because its 

allegation that DISH2

 had prior knowledge of the asserted patents is implausible. In particular, 

Freedom speculates (incorrectly, without basis, and implausibly) that DISH’s internal policies 

require ignoring third-party patents. Complaint ¶ 123. This assertion does not meet the Twombly

plausibility standards and, even if it did, it would still fail because it would at most lead to the 

conclusion that DISH had knowledge of the patents – not knowledge of any alleged infringement. 

Freedom’s complaint also fails to allege DISH took any affirmative acts with the specific 

intent to indirectly infringe. Instead, Freedom points only to conduct that cannot possibly reflect 

DISH’s intent to indirectly infringe because it pre-dates DISH’s knowledge of Freedom’s 

allegations. Freedom’s complaint appears to rely on this same conduct as evidence of willful 

infringement, in violation of the Federal Circuit’s requirement that allegations of willfulness must 

be based exclusively on pre-suit conduct undertaken with knowledge of the patents. 

The Court should therefore dismiss Freedom’s claims of indirect infringement and willful 

infringement.3

II. BACKGROUND 

Freedom filed its complaint against DISH on April 7, 2023 (“Complaint”). Freedom’s 

Complaint alleges that DISH infringes three patents: U.S. Patent Nos. 8,284,686, 8,374,096, and 

8,514,815 (collectively, the “Asserted Patents”). Freedom alleges that DISH directly infringes 

 

1

 Plaintiff Freedom Patents LLC’s (“Freedom”) 

2

 DISH Network Corporation, DISH Network L.L.C., and Dish Network Service L.L.C 

(collectively, “DISH”) 

3

 This motion is brought concurrently with a co-pending motion to transfer venue. Because the 

Federal Circuit has held that decisions on transfer motions “must proceed expeditiously as the first 

order of business,” the Court should decide that motion before this one, and need not reach this 

motion if the motion to transfer is granted. In re Apple Inc., 52 F.4th 1360, 1363 (Fed. Cir. 2022). 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 6 of 18 PageID #: 141
- 2 - 

each Asserted Patent by, among other acts, making, using, importing, and selling its “DISH 

Wireless Joey (with 3x3 MIMO) family of products and other products4

 that implement MIMO 

Wi-Fi capabilities.” Complaint ¶¶ 20-21, 58-59 and 80-81. 

Freedom also avers DISH indirectly and willfully infringes the Asserted Patents. Freedom 

does not, however, include any specific allegations that DISH had prior notice of the Asserted 

Patents or that DISH knew it was allegedly infringing. Instead, Freedom only alleges DISH “had 

actual knowledge” of the Asserted Patents “at least as of the date when it was notified of the filing 

of this action.” Id. ¶ 121. Freedom likewise alleges, with no apparent basis, that DISH has “a 

policy or practice of not reviewing the patents of others (including instructing its employees to not 

review the patents of others), and thus has been willfully blind to Freedom Patents’ patent rights.” 

Id. ¶ 123. Freedom’s only support for this accusation is a 15-year old law review article that makes 

no mention of DISH or its internal policies. Id.

5

 

Regarding inducement, Freedom alleges DISH induces (unspecified) end users of the 

accused products to directly infringe by “taking 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.” Id. ¶ 101. Freedom provides no basis for this conclusory allegation of 

“specific intent.” The allegedly inducing steps include (i) advising users to infringe, 

(ii) advertising infringing uses, and (iii) distributing instructions that guide users to infringe—but 

 

4

 These “other products” identified in the Complaint are primarily products made by third parties, 

and are “Wireless Joey Access Point 2, Ring Chime Pro (2nd Gen), Ring Spotlight Cam 

Wired, Google Nest Wifi Pro, Google Nest WiFi Router & Point, Linksys Atlas 6 Dual-Band 

Mesh Wifi System, Linksys Velop Intelligent Dual-Band Mesh Wifi System.” See, e.g. Complaint 

¶ 20 n.6. 

5

 The cited law review article is M. Lemley, “Ignoring Patents,” 2008 Mich. St. L. Rev. 19 (2008), 

https://www.ftc.gov/sites/default/files/documents/public_events/evolving-ipmarketplace/mlemley_ip.pdf. 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 7 of 18 PageID #: 142
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Freedom provides no examples and identifies no instances of any such advice, advertisements, or 

instructions. Id. ¶ 102. Freedom also alleges DISH has induced affiliates and other third parties 

to infringe by importing, selling, and offering the accused products. Id. ¶ 105. But again, Freedom 

provides no specific allegations and does not explain how DISH’s conduct changed (if at all) after 

it allegedly learned of Freedom’s allegations of infringement. 

Freedom also alleges contributory infringement. Id. ¶¶ 116-120. Without specifying how, 

Freedom alleges that DISH has contributed to direct infringement by its end users who use the 

accused products in an allegedly infringing manner. Id.

On willfulness, Freedom only avers the legal conclusion that DISH’s alleged infringement 

“has been, and/or continues to be willful, intentional, deliberate, and/or in conscious disregard for 

Freedom Patent’s Rights under the patents-in-suit.” Id. ¶ 125. 

III. LEGAL STANDARDS 

To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The 

plausibility standard is not met unless the “plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 

U.S. at 678. Courts “are not bound to accept as true a legal conclusion couched as a factual 

allegation.” Id. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements, do not suffice.” Id.

In order to survive a motion to dismiss, a complaint asserting indirect infringement “must: 

1) adequately plead direct infringement by [a third party]; 2) contain facts plausibly showing that 

defendant specifically intended for [that third party] to infringe the asserted patents; and 3) contain 

facts plausibly showing that defendant knew that the [third party’s] acts constituted infringement.” 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 8 of 18 PageID #: 143
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Core Wireless Licensing S.A.R.L. v. Apple Inc., No. 6:14-CV-751-JDL, 2015 WL 5000397, at *3 

(E.D. Tex. June 3, 2015), report and recommendation adopted, 2015 WL 13885437 (E.D. Tex. 

July 15, 2015); Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632 1920, 1926 (2015); see also 

Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011) (“[I]nduced infringement 

under [35 U.S.C.] § 271(b) requires knowledge that the induced acts constitute patent 

infringement.”); Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488 (1964) 

(holding that contributory infringement under 35 U.S.C. § 27l(c) “require[s] a showing that the 

alleged contributory infringer knew that the combination for which his component was especially 

designed was both patented and infringing”). To meet the specific intent element, “the alleged 

infringer must be shown to have knowingly induced infringement, not merely knowingly induced 

the acts that constitute direct infringement.” DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306 

(Fed. Cir. 2006) (emphases in original) (cleaned up); see Manville Sales Corp. v. Paramount Sys., 

Inc., 917 F.2d 544, 553 (Fed. Cir. 1990) (“It must be established that the defendant possessed 

specific intent to encourage another’s infringement and not merely that the defendant had 

knowledge of the acts alleged to constitute inducement.”). Put another way, it is not enough that 

an accused indirect infringer merely intends others to perform certain acts that are later found to 

infringe. See DSU Med. Corp., 471 F.3d at 1306. Rather, the defendant must intend that someone 

else infringe. 

Courts often dismiss claims for indirect infringement where the plaintiff has not adequately 

pled the defendant’s pre-suit knowledge of the patents. See, e.g., Proxyconn Inc. v. Microsoft 

Corp., No. SACV 11–1681 DOC (ANx), 2012 WL 1835680, at *5 (C.D. Cal. May 16, 2012) 

(requiring pre-suit knowledge for induced infringement claims because it “furthers judicial 

economy and preserves parties’ resources by encouraging resolution prior to filing a lawsuit.”); 

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Mallinckrodt, Inc. v. E-Z-EM Inc., 670 F. Supp. 2d 349, 354 n.1 (D. Del. 2009) (requiring pre-suit 

knowledge for induced infringement claims); see also Sonos, Inc. v. Google LLC, 591 F. Supp. 3d 

638, 647-48 (N.D. Cal. 2022); Ravgen, Inc. v. Quest Diagnostics Inc., No. 2:21-cv-09011-RGKGJS, 2022 U.S. Dist. LEXIS 104409, at *5-7 (C.D. Cal. Jan. 18, 2022); ZapFraud, Inc. v. 

Barracuda Networks, Inc., 528 F. Supp. 3d 247, 252 (D. Del. 2021) 

Willful infringement is a matter of culpability and state of mind, and therefore also has 

knowledge of the asserted patents as a prerequisite. WCM Indus., Inc. v. IPS Corp., 721 F. App’x 

959, 970 (Fed. Cir. 2018); Gustafson, Inc. v. Intersystems Indus. Prods., Inc., 897 F.2d 508, 510–

11 (Fed. Cir. 1990). But knowledge of the patents is not enough. To establish willfulness, 

Freedom “must show that the accused infringer had a specific intent to infringe at the time of the 

challenged conduct.” BASF Plant Sci., LP v. Commonwealth Sci. & Indus. Rsch. Organisation, 

28 F.4th 1247, 1274 (Fed. Cir. 2022) (citing Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 

105 (2016). 

IV. ARGUMENT 

A. Freedom Fails To Allege Any Basis For Pre-Suit Indirect Infringement. 

To the extent Freedom is alleging DISH has engaged in indirect infringement prior to 

receiving notice of Freedom’s allegations, the Complaint fails to adequately plead a claim for presuit indirect infringement. Freedom pleads DISH had knowledge of the Asserted Patents as of the 

date it was notified of the Complaint, (Complaint ¶ 121), and alleges DISH was “willfully blind” 

to Freedom’s patent rights, with no specificity as to time. Because the first allegation cannot 

support pre-suit knowledge and the second allegation does not specify a time period, it is not clear 

if Freedom is even attempting to allege DISH has engaged in pre-suit indirect infringement. That 

lack of specificity alone is a sufficient basis to dismiss. See Affinity Labs of Tex., LLC v. Toyota 

Motor N. Am., Inc., No. W:13-CV-365, 2014 U.S. Dist. LEXIS 90379, at *11 (W.D. Tex. May 12, 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 10 of 18 PageID #: 145
- 6 - 

2014) (dismissing inducement claims when the complaint did “not express whether the induced 

infringement claim is limited to patent violations that occurred after the lawsuit was filed, or if the 

induced infringement claim includes conduct or knowledge pre-lawsuit”). 

Even if Freedom were attempting to plead pre-suit indirect infringement, its allegations 

would be insufficient. In particular, the only basis on which Freedom might be trying to allege 

pre-suit knowledge is its willful blindless allegation, i.e., its allegation that DISH has policy of 

ignoring third-party patents. Complaint ¶ 123. But Freedom’s Complaint reveals no factual bases 

for this allegation whatsoever. Instead, the allegation cites a 15-year-old academic article arguing 

in the abstract that it would make sense for companies to ignore patents, and that article makes no 

mention of DISH or its policies. Id. (citing M. Lemley, “Ignoring Patents,” 2008 Mich. St. L. Rev. 

19 (2008)). Nor does Freedom provide any information that would shed light on how it could 

possibly know anything about DISH’s internal legal policies. Freedom’s speculation is insufficient 

to state a valid claim, nor does it “raise a right to relief above the speculative level” as it must 

survive a motion to dismiss. Twombly, 550 U.S. at 555, 557. To put it differently, for Twombly

to have meaning, the plaintiff must make specific allegations that make a showing as to this specific 

defendant—rather than an unsupported and purely conclusory assertion that the defendant ignores 

patents, combined with a citation to an academic article unconnected to DISH. 

But even taking Freedom’s bald speculation as truth, Freedom’s complaint makes no 

allegation that DISH was willfully blind to its alleged infringement of Freedom’s patents. See 

VLSI Tech., LLC v. Intel Corp., C.A. No. 18-966-CFC, 2019 U.S. Dist. LEXIS 49801, at *5 (D. 

Del. Mar. 26, 2019) (dismissing willful blindness allegations based solely on blindness of the 

existence of the patents rather than knowledge of the alleged infringement). Accordingly, even if 

Freedom’s willful blindness allegation were sufficient to substitute for knowledge of Freedom’s 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 11 of 18 PageID #: 146
- 7 - 

patents, it would still fail to show the knowledge of infringement required to allege indirect 

infringement. See Core Wireless Licensing, 2015 WL 5000397, at *3 (explaining that indirect 

infringement allegation requires “facts plausibly showing that defendant knew that the customer’s 

acts constituted infringement”).6

B. Freedom’s Inducement Allegations Fail to Adequately Allege Any Post-Suit 

Affirmative Acts Taken with Specific Intent to Indirectly Infringe. 

Freedom has failed to plead any post-suit facts that plausibly allege DISH took post-suit 

affirmative acts with the specific intent to indirectly infringe any Asserted Patent. Freedom 

describes DISH’s business activities and alleges (in a completely conclusory manner) the business 

activities were taken with the specific intent to induce infringement of Freedom’s patents. 

Complaint ¶¶ 100-115. And as to future conduct, Freedom’s allegations merely speculate DISH 

will continue these courses of conduct. This is improper. See Ravgen, 2022 U.S. Dist. LEXIS 

104409, at *5 n.3 (rejecting post-suit conduct allegations that “speculate as to defendant’s future 

conduct”). 

But even setting aside Freedom’s improper speculation, these allegations do not recite any 

affirmative act taken with the specific intent to indirectly infringe. For example, DISH could not 

have developed and distributed the supposedly inducing materials with the specific intent to 

infringe the Asserted Patents because there is no allegation that DISH had knowledge of the 

Asserted Patents at the time those materials were developed and when DISH began to distribute 

them. Complaint ¶¶ 102, 112. There is also no allegation about when DISH distributed those 

materials (or that it failed to stop distributing them after it gained knowledge of Freedom’s patents), 

 

6

 For this reason, Motiva Pat., LLC v. Sony Corp., 408 F. Supp. 3d 819, 833 (E.D. Tex. 2019), is 

inapposite. In Motiva, the court found that allegations of a policy of ignoring patents were 

sufficient to show knowledge of the patents themselves, not knowledge that the alleged infringers 

act was causing indirect infringement of the patents. 

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and even if Freedom had made such an allegation, it would not matter because “mere inaction 

d[oes] not constitute inducement.” See Tegal Corp. v. Tokyo Electron Co., 248 F.3d 1376, 1379 

(Fed. Cir. 2001) see also Global-Tech Appliances, 563 U.S. at 760 (“inducement must involve the 

taking of affirmative steps to bring about the desired result”). 

And the same reasoning applies for Freedom’s claims of contributory infringement. 

Freedom alleges DISH somehow contributes to its end users’ infringement, but does not explain 

how. Complaint ¶¶ 116-120. Because Freedom does not even explain what DISH does to 

contribute to this alleged infringement, it certainly does not allege that DISH’s actions were taken 

with the specific intent to indirectly infringe. See Glob.-Tech, 563 U.S. at 763 (holding that 

contributory infringement requires the same level of specific intent as is required for inducement). 

In Tierra Intelectual Borinquen, Inc. v. ASUS Comput. Int'l, Inc., No. 2:13-CV-38-JRG, 

2014 U.S. Dist. LEXIS 28249, at *12 (E.D. Tex. Mar. 3, 2014), a court in this district held that 

allegations concerning a retailer’s acts of selling an allegedly infringing product was insufficient 

to adequately allege a claim for induced infringement. Id. at *18. The court explained that the 

retailer had taken “no affirmative steps to induce infringement” because “[h]aving learned of the . 

. . infringing behavior, it simply continued business as usual.” Id. Because “literally no change in 

[the retailer’s] behavior [was] alleged,” the court held that “failure to change behavior in light of 

a new fact cannot be characterized as an affirmative step evincing desire” that others infringe the 

patents. Id. at *18-*19.7

 

7

 DISH acknowledges that courts in this district have found that there is no requirement that a 

plaintiff allege pre-suit knowledge to adequately state a claim for indirect infringement. Billjco v. 

Cisco Sys., No. 2:21-CV-00181-JRG, 2021 U.S. Dist. LEXIS 251455, at *18 n.2 (E.D. Tex. Nov. 

30, 2021). The Complaint here nonetheless fails to state a claim for indirect infringement because 

it identifies no affirmative acts undertaken with the specific intent to cause others to infringe the 

Asserted Patents. 

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Freedom’s allegations against DISH fail for these same reasons. Indeed, for most of the 

alleged accused products, DISH is a mere retailer (see n.1 supra)—just like in Tierra—and there 

is no allegation that DISH has in any way “chang[ed] behavior in light of” Freedom’s allegations 

such that it could be taking affirmative steps with the specific intent to indirectly infringe with 

regard to those products. Id. at *18-19. Further, for DISH’s own products, Freedom likewise

identifies no “affirmative acts” taken with the specific intent to cause others to indirectly infringe 

the Asserted Patents. Rather, like the retailer in Tierra, Freedom’s allegations of post-suit conduct 

include “literally no change” in DISH’s actions and allege only that DISH has “simply continued 

its business as usual.” Id.

C. Freedom Fails to Adequately Plead Willful Infringement. 

The Court should dismiss Freedom’s claim of willful infringement. First, to the extent that 

Freedom has attempted to allege pre-suit willfulness, it fails for the same reasons set forth above 

in Section IV.1.A. Freedom fails to sufficiently plead facts alleging DISH had pre-suit knowledge 

of the patents or its alleged infringement thereof. The only allegation that could possibly imply 

pre-suit knowledge of the patents is the (implausible, temporally ambiguous) willful blindness 

allegation. Complaint ¶ 123. And even if that speculative allegation were taken as true, the 

Complaint would not adequately aver that DISH was willfully infringing the Asserted Patents prior 

to the lawsuit because “[k]nowledge of the asserted patent and evidence of infringement is 

necessary, but not sufficient, for a finding of willfulness.” Bayer Healthcare LLC v. Baxalta Inc., 

989 F.3d 964, 988 (Fed. Cir. 2021). Rather, as with indirect infringement, Freedom “must show 

that the accused infringer had a specific intent to infringe at the time of the challenged conduct.” 

BASF, 28 F.4th at 1274. As explained above, Freedom’s allegation regarding DISH’s so-called 

policy does not adequately plead this requirement. See VLSI Tech., LLC, 2019 U.S. Dist. LEXIS 

49801, at *5 (holding that willful blindness allegations do not show knowledge of infringement). 

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Second, for these same reasons, Freedom fails to state a claim for post-suit willfulness. 

The Federal Circuit has held that “a willfulness claim asserted in the original complaint must 

necessarily be grounded exclusively in the accused infringer’s pre-filing conduct.” In re Seagate 

Tech., LLC, 497 F.3d 1360, 1374 (Fed. Cir. 2007) (emphasis added) (overruled on other grounds 

by Halo, 579 U.S. at 104-107). SeaGate’s en banc holding remains the operative law on pleading 

willfulness. In Halo, the Supreme Court overruled SeaGate’s separate holding that a plaintiff must 

prove objective willfulness by clear and convincing evidence. Halo, 79 U.S. at 104-107. But 

nothing in Halo abrogated Seagate’s holding that “when a complaint is filed, a patentee must have 

a good faith basis for alleging willful infringement” and thus cannot allege willfulness as a purely 

forward-looking matter. Seagate, 497 F.3d at 1374 (citing Fed. R. Civ. P. 8, 11(b)). Nor has any 

en banc Federal Circuit decision overruled Seagate’s standard for pleading willfulness.8

 

Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1347 n.3 (Fed. Cir. 2015) (explaining that “the 

overruling of prior precedent can only be done by the [Federal Circuit] en banc”). 

Third, even if Freedom’s improper speculation regarding DISH’s future behavior were 

taken as true, its Complaint would still fail to adequately allege the “deliberate and intentional 

infringement” required to plead willfulness. Freedom alleges (read: predicts) that DISH has not 

changed its conduct as a reaction to being sued, but “this post-suit fact pattern characterizes every 

infringement action except for those in which an alleged infringer immediately ceases production 

following service of the complaint.” M & C Innovations, LLC v. Igloo Prods. Corp., C.A. No. 

4:17-CV-2372, 2018 WL 4620713, at *5 (S.D. Tex. July 31, 2018). When a defendant merely 

 

8

 DISH recognizes that courts in this district have allowed willfulness claims based exclusively on 

post-suit conduct to survive a motion to dismiss. See, e.g., Plano Encryption Techs., LLC v. Alkami 

Tech., Inc., C.A. No. 2:16-cv-1032-JRG, 2017 U.S. Dist. LEXIS 221765, at *16 (E.D. Tex. Sep. 

22, 2017). To DISH’s knowledge, these decisions do not reconcile their outcome with Seagate’s 

contrary holding and, to the extent they are in conflict, Seagate remains controlling. 

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“continue[s] manufacturing its [allegedly] infringing products,” the case is “the kind of ‘gardenvariety’ patent case that Halo affirms is ill-suited for a finding of willfulness.” Id. To hold 

otherwise would lead to a “beyond the pale” expectation for “every patent defendant to cease all 

allegedly infringing conduct once a complaint is filed to force them to avoid enhanced damages 

for willful infringement.” Ravgen, 2022 U.S. Dist. LEXIS 104409, at *6 (citing Slot Speaker 

Techs, Inc. v. Apple, Inc., No. 13-CV-01161-HSG, 2017 WL 4354999, at *2 (Sep. 29, 2017)) 

(internal quotation marks omitted). Accordingly, Freedom’s speculative allegation that DISH will 

not cease its operations concerning the accused products in response to Freedom’s assertion of 

patent claims does not plausibly allege that DISH is engaging or has engaged in willful 

infringement. 

V. CONCLUSION 

For the foregoing reasons, Freedom’s claims for pre-suit and post-suit indirect 

infringement and willfulness should be dismissed. 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 16 of 18 PageID #: 151
- 12 - 

Dated: July 17, 2023 Respectfully submitted, 

By /s/ Eric H. Findlay 

Eric H. Findlay 

State Bar No. 00789886 

FINDLAY CRAFT, P.C. 

7270 Crosswater Avenue, Suite B 

Tyler, TX 75703 

Telephone: 903.534.1100 

efindlay@findlaycraft.com 

Clement Roberts

Will Melehani 

Orrick, Herrington & Sutcliffe LLP 

The Orrick Building 

405 Howard Street 

San Francisco, CA 94105-2669 

Telephone: 415-773-5700 

Email: croberts@orrick.com 

Email: wmelehani@orrick.com 

Alyssa Caridis 

Orrick, Herrington & Sutcliffe LLP 

777 South Figueroa Street, Suite 3200 

Los Angeles, CA 90017-5855 

Telephone: 213-629-2020 

Email: acaridis@orrick.com 

Wesley White, pro hac vice

Orrick, Herrington & Sutcliffe LLP 

51 W 52nd Street 

New York, NY 10019-6142 

Telephone: 213-506-5000 

Email: wwhite@orrick.com 

Attorneys for Defendants 

DISH NETWORK CORPORATION, 

DISH NETWORK L.L.C., and DISH 

NETWORK SERVICE L.L.C. 

 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 17 of 18 PageID #: 152
- 13 - 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on July 17, 2023, a copy of the foregoing was served 

electronically, via CM/ECF, on all counsel of record who are deemed to have consented such 

service under the Court’s local rules. 

By: /s/ Eric H. Findlay 

Eric H. Findlay 

Case 4:23-cv-00303-ALM Document 17 Filed 07/17/23 Page 18 of 18 PageID #: 153