UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

MARSHALL DIVISION 

SYMBOLOGY INNOVATIONS, LLC, 

Plaintiff, 

v. 

VALVE CORPORATION, GEARBOX 

SOFTWARE, L.L.C., 

Defendants. 

Civil Action No. 2:23-cv-00419-JRG 

JURY TRIAL DEMANDED 

MOTION OF DEFENDANT GEARBOX SOFTWARE, L.L.C. TO 

DISMISS UNDER RULE 12(b)(6) FOR FAILURE TO STATE A CLAIM 

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i 

TABLE OF CONTENTS 

Page 

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

II. STATEMENT OF ISSUES TO BE DECIDED BY THE COURT ....................................1

III. FACTUAL BACKGROUND ..............................................................................................2

A. Symbology’s Complaint Attempts to Conflate Gearbox and Valve as a 

Single “Defendant” in an Attempt to Establish Venue Over Valve ........................2

B. The Only Asserted Infringement Allegations Are Directed to Valve and 

QR Codes Used to Sign on to Valve’s Steam App ..................................................3

C. The “Willful Infringement” Allegations in the Complaint Are Not 

Directed to Gearbox .................................................................................................4

IV. LEGAL STANDARD ..........................................................................................................5

V. ARGUMENT .......................................................................................................................5

A. Symbology’s Complaint Fails to Plausibly Plead Direct Infringement 

by Gearbox ...............................................................................................................5

B. Symbology’s Complaint Fails to Plausibly State a Claim of Indirect 

Infringement Against Gearbox ................................................................................8

C. Symbology’s Complaint Fails to State a Claim of Willful Infringement 

by Gearbox .............................................................................................................10

VI. CONCLUSION ..................................................................................................................11

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TABLE OF AUTHORITIES 

Page(s) 

CASES

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ...................................................................................................................5 

Baker v. Putnal, 

75 F.3d 190 (5th Cir. 1996) .......................................................................................................7 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) ...............................................................................................................1, 5 

Callier v. Nat’l United Grp., LLC, 

No. EP-21-CV-71-DB, 2022 WL 4088205 (W.D. Tex. 2022) ..................................................6 

Cobarobio v. Midland Cnty., 

No. MO:13-CV-00111-RAJ, 2015 WL 13608102 (W.D. Tex. 2015), 

aff’d, 695 F. App’x 88 (5th Cir. 2017) ...................................................................................6, 7 

Doe v. Yackulic, 

No. 4:18-CV-084-ALM-CAN, 2019 WL 1301998 (E.D. Tex. 2019) .................................5, 11 

Fractus, S.A. v. TCL Corp., 

No. 2:20-CV-00097-JRG, 2021 WL 2483155 (E.D. Tex. 2021) ............................................10 

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

136 S. Ct. 1923 (2016) .............................................................................................................10 

In re Bill of Lading, 

681 F.3d 1323 (Fed. Cir. 2012)..................................................................................................9 

Lone Star Fund V (U.S.) L.P v. Barclays Bank PLC, 

594 F.3d 383 (5th Cir. 2010) .....................................................................................................7 

Martinez v. City of N. Richland Hills, 

846 F. App’x 238 (5th Cir. 2021) ..............................................................................................5 

McCartney v. First City Bank, 

970 F.2d 45 (5th Cir. 1992) .......................................................................................................7 

Nu-You Techs., LLC v. Beauty Town Int’l. Inc., 

No. 3:15-CV-03433-N, 2016 WL 4717991 (N.D. Tex. 2016) ..................................................8 

Qwikcash, LLC v. Blackhawk Network Holdings, Inc., 

No. 4:19-CV-876-SDJ, 2020 WL 6781566 (E.D. Tex. Nov. 17, 2020) ....................................8 

Tierra Intelectual. Borinquen, Inc., 

No. 2:13-CV-38-JRG, 2014 WL 894805 (E.D. Tex. Mar. 4, 2014) ....................................9, 10 

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TABLE OF AUTHORITIES 

(Continued) 

Page(s) 

 iii 

STATUTES AND RULES

35 U.S.C. § 284 ................................................................................................................................4 

Fed. R. Civ. P. 8(a) ..........................................................................................................................5 

Fed. R. Civ. P. 12(b)(6)............................................................................................................1, 5, 7 

Patent Local Rule 3-1.......................................................................................................................7 

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I. INTRODUCTION 

Defendant Gearbox Software, L.L.C. (“Gearbox”) moves to dismiss the claims of Plaintiff 

Symbology Innovations, LLC (“Symbology”) against Gearbox pursuant to Federal Rule of Civil 

Procedure 12(b)(6) for failure to state a claim under the Twombly/Iqbal standard. 

The Complaint does not allege infringement by any Gearbox products, let alone articulate 

any plausible theories of infringement. Instead, the only allegations of infringement are directed 

to the other defendant in the case, Valve Corporation (“Valve”), which is a wholly separate entity 

from Gearbox. Symbology included Gearbox in this case solely in an attempt to manufacture 

venue as to Valve,1 confirmed by the fact that Symbology’s Complaint, and the charts attached 

thereto, lack any infringement allegations directed to Gearbox or Gearbox’s products at all. 

Symbology’s attempt to conflate the two defendants, and to attribute the allegedly infringing acts 

of one defendant (Valve) to another defendant (Gearbox), is improper. The Complaint fails to 

state claims of infringement and willfulness as to Gearbox and, accordingly, these claims should 

be dismissed. 

II. STATEMENT OF ISSUES TO BE DECIDED BY THE COURT 

The issue to be decided is whether Symbology’s Complaint adequately states a claim for 

relief, under the Twombly standard, as to Gearbox. More specifically, the Court is being asked to 

decide whether the Complaint adequately states claims of direct infringement, indirect 

infringement, and willful infringement by Gearbox. 

1

 Valve has filed a Motion to Dismiss for Improper Venue. (Dkt. 11 at 7-9.) In its motion, 

Valve explained that Symbology is merely using “Gearbox in a transparent attempt to manufacture 

venue against Valve,” and that “Symbology does not accuse Gearbox of infringing its patents, and 

the charts of accused products that Symbology attaches to its complaint do not contain a single 

reference to Gearbox.” (Id. at 7.) 

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III. FACTUAL BACKGROUND 

Plaintiff Symbology asserts four patents which it purports to own via assignment: U.S. 

Patent Nos. 7,992,773 (“the ’773 Patent”), 8,424,752 (“the ’752 Patent”), 8,651,369 (“the ’369 

Patent”), and 8,936,190 (“the ’190 Patent”).2 (See Dkt. 1 (“Complaint”) at 1.) The sole named 

inventor of each of the patents-in-suit is Leigh M. Rothschild. (Id., Exs. A, B, C, D.) According 

to the Complaint, the patents-in-suit are directed to “a system and method for enabling a portable 

electronic device to retrieve information about an object when the object’s symbology, e.g., a 

barcode, is detected.” (Id. ¶ 24.) 

A. Symbology’s Complaint Attempts to Conflate Gearbox and Valve as a Single 

“Defendant” in an Attempt to Establish Venue Over Valve 

Symbology names two defendants—Valve and Gearbox—in its Complaint. (Complaint 

¶¶ 2-3.) Although Valve and Gearbox are wholly different entities, the Complaint almost 

exclusively refers to Valve and Gearbox collectively as “Defendant.”3 (See id. ¶ 3.) However, the 

Complaint does not allege, or provide any facts supporting, any assertion that Valve and Gearbox 

are a single entity, because they are not. The Complaint merely states that the two entities have 

previously collaborated on two video games, Half-Life and Counter-Strike, which launched in 

2002 and 2004, respectively. (See id. ¶ 7 at Fig. 6.) The two video games on which Valve and 

Gearbox collaborated nearly two decades ago are not accused products. (See id., Exs. E, F, G, H.) 

2

 The Complaint’s asserted counts of infringement do not include any count of infringement 

of the ’773 Patent and instead asserts two counts of infringement of the ’752 Patent. Complaint at 

14-17. Additionally, the numbering of these paragraphs is repeated. (Complaint at 14-17.) 

Therefore, any reference to a repeated paragraph number will include both the page number and 

the paragraph number for clarity. 

3

 Symbology’s Complaint references Gearbox individually only a few times, but only in 

reference to Gearbox’s place of business and the collaboration between Gearbox and Valve 

regarding two video games, Counter-Strike and Half-Life, released in 2002 and 2004, respectively. 

(See Complaint ¶ 3 (identifying Gearbox’s principal place of business); id. ¶ 5 at Fig. 2 (providing 

a screenshot of a Gearbox website); id. ¶ 7 at Fig. 6 (discussing prior collaboration between Valve 

and Gearbox).) 

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The Complaint conflates Gearbox and Valve in an attempt to manufacture venue over 

Valve. (See Dkt. 11 (Valve’s Motion to Dismiss for Improper Venue).) Specifically, the 

Complaint alleges that venue is proper because, “[a]s noted above, Defendant maintains a regular 

and established business presence in this District.” (Complaint ¶ 8.) The only allegation in the 

Complaint regarding a place of business in this District is a place of business of Gearbox. (See id., 

¶¶ 2-3.) In other words, the Complaint alleges that Gearbox has a “regular and established business 

presence in this District” (id., ¶ 8), and attempts to attribute such presence to Valve by conflating 

Gearbox and Valve as a single “Defendant” (id., ¶ 3). 

B. The Only Asserted Infringement Allegations Are Directed to Valve and QR 

Codes Used to Sign on to Valve’s Steam App 

The Complaint identifies the accused instrumentalities as “QR codes associated with a 

website of Defendant, as well as any similar products.” (Complaint ¶ 44 (emphasis added).) While 

the Complaint does not specify the “Defendant” whose website is associated with the accused QR 

codes,4 the claim charts attached to the Complaint make clear that the “Defendant” being 

referenced is Valve. Specifically, the claim charts attached to the Complaint identify the allegedly 

infringing product as the “Steam App,” which is an application that is a product of Valve, and 

identify the accused “QR code” as one that can be used “to sign into Steam instead of entering a 

password.” (See id., Ex. G at, e.g., 3 (identifying accused QR code); see also Dkt. 11 at 3 (Valve 

confirming that “Valve and Gearbox did not work together to develop the Steam mobile app”), 

9 (Valve describing “Valve’s Steam platform”).) The claim charts do not identify or chart any 

Gearbox products or services. (See generally, Complaint, Exs. E, F, G, H; see also Dkt. 11 at 7 

4

 The counts of infringement further state “[u]pon information and belief, Defendant has 

infringed and continues to infringe one or more claims, including at least Claim 1, of the [patentsin-suit] by making, using, importing, selling, and/or offering for sale (as identified in the Claim 

Chart attached hereto...)”—again, without specifying the “Defendant.” (Complaint ¶ 63 (page 14) 

(emphasis added); see also id., ¶¶ 63 (page 16), 80, 97.) 

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(Valve’s motion explaining that “Symbology does not accuse Gearbox of infringing its patents, 

and the charts of accused products that Symbology attaches to its complaint do not contain a single 

reference to Gearbox”).) 

Pursuant to the Court’s initial case management order (Dkt. 7), Symbology served 

infringement contentions on Gearbox.5 (See Declaration of Jessica M. Kaempf (“Kaempf Decl.”), 

¶ 2.) Like the charts attached to the Complaint, Symbology’s infringement contentions identify 

the “accused instrumentalities” as comprising only Valve products, specifically the Steam 

platform. (Id. ¶ 3.) 

C. The “Willful Infringement” Allegations in the Complaint Are Not Directed to 

Gearbox 

The Complaint also alleges willful infringement regarding a “Defendant,” but again does 

not contain any allegations specific to Gearbox. (Complaint ¶¶ 111-113.) The entirety of the 

Complaint’s language relevant to willful infringement is pasted below: 

111. Plaintiff has had numerous communications with Defendant

explaining his infringement of the patents-in-suit. 

112. Defendant acknowledged the Plaintiff’s patents, had knowledge of 

these Patents-in-Suit and knowingly continued to infringe Plaintiff’s patents 

without a license. 

113. Plaintiff is seeking exemplary damages due to Defendant’s willful 

infringement, pursuant to 35 U.S.C. § 284, based on its pre-suit and post filing of a 

complaint conduct. The Supreme Court has eliminated the objective-recklessness 

standard and instead, decided that “the subjective willfulness of a patent infringer, 

intentional or knowing, may warrant enhanced damages, without regard to whether 

his infringement was objectively reckless.” 

(Id. (emphases added) (citations omitted).) 

The Complaint fails to identify any of the “numerous communications” alleged, let alone 

identify the “Defendant” with which Symbology allegedly had communications. 

5

 Symbology served its contentions on Gearbox on November 21, 2023, a day after the deadline 

provided in Dkt. 7. 

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(See generally, id.) The Complaint unsurprisingly never identifies any alleged communication 

with Gearbox, since no such pre-complaint communications occurred. 

IV. LEGAL STANDARD 

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 

defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 

granted under Rule 12(b)(6). 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)). A claim has facial 

plausibility when 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. 

V. ARGUMENT 

A. Symbology’s Complaint Fails to Plausibly Plead Direct Infringement by 

Gearbox 

Because the Complaint fails to identify even a single alleged act of infringement 

specifically by Gearbox, and provides no factual assertions linking Gearbox to any accused 

product, Symbology has failed to raise a plausible inference of liability against Gearbox, and the 

claims of infringement against Gearbox must be dismissed. 

Highly generalized assertions that merely lump together multiple defendants, and that do 

not identify the specific actions of an individual defendant that allegedly render that defendant 

liable, are insufficient to state a claim. Martinez v. City of N. Richland Hills, 846 F. App’x 238, 

244 (5th Cir. 2021) (affirming dismissal of claims that “refer[red] to the Individual Defendants 

collectively and without specific distinction as to individual knowledge possessed, and the action 

and/or inaction committed by each”); Doe v. Yackulic, No. 4:18-CV-084-ALM-CAN, 2019 WL 

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1301998, at *13 (E.D. Tex. 2019) (dismissing claims which “largely fail[ed] to assert any 

individualized conduct” and “lump[ed] numerous [d]efendants together”); see also Callier v. Nat’l 

United Grp., LLC, No. EP-21-CV-71-DB, 2022 WL 4088205, at *4 (W.D. Tex. 2022) 

(“Allegations like these which lump all defendants together, without identifying specific actions 

of individual defendants, will not suffice to raise a plausible inference of liability against any 

individual defendant.”) (citing Cobarobio v. Midland Cnty., No. MO:13-CV-00111-RAJ, 2015 WL 

13608102, at *9 (W.D. Tex. 2015), aff’d, 695 F. App’x 88 (5th Cir. 2017) (stating that a complaint 

that “routinely lumps all Defendants together without identifying actions of any individual 

Defendant” and makes “global assertions of fault” does not set out the specific factual allegations 

needed)). 

Here, Symbology’s complaint merely attempts to lump together Gearbox with Valve, 

without pleading facts to support a claim of infringement specific to Gearbox. Neither the 

Complaint nor the claim charts attached to the Complaint identify any allegedly infringing 

products or services of Gearbox. (See generally, Complaint.) Instead, the Complaint merely 

recites vague allegations of infringement by an unspecified “Defendant.” (See, e.g., id., ¶ 63 (page 

14) (“Defendant has infringed and continues to infringe” the patents-in-suit).) As evident from 

the claim charts attached to the Complaint, the “Defendant” referenced in such vague allegations 

is Valve, not Gearbox. (Complaint, Exs. E, F, G, H (alleging infringement by Valve’s Steam 

platform).) In other words, Symbology merely makes allegations directed to the infringing acts 

by Valve, then attempts to lump Gearbox and Valve together (without identifying any conduct 

specific to Gearbox). Such vague, global assertions of fault are insufficient to state a claim as to 

Gearbox. Cobarobio, 2015 WL 13608102, at *9. 

Further, Symbology’s attempt to associate Gearbox with Valve, by stating that the two 

defendants previously collaborated on two games nearly two decades ago (see id. ¶ 7), is 

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insufficient to state a claim of infringement. Neither game identified as being subject of Gearbox’s 

and Valve’s long-ago collaboration is at issue in this litigation, and this is confirmed by 

Symbology’s own claim charts, which do not contain a single reference to Gearbox or either of 

those games. (Id.; see generally id., Exs. E, F, G, H.) Nor does the Complaint plead any facts 

supporting any allegation that Gearbox somehow allegedly infringes through Valve’s product. 

(See generally, id.) Indeed, nothing in the Complaint suggests that Gearbox makes, uses, offers to 

sell, or sells the accused Valve product. (See id.) Because Gearbox and Valve’s prior collaboration 

is entirely unrelated to this lawsuit, and because Symbology does not (and cannot) plausibly allege 

that Gearbox infringes through another company’s product, the Complaint does not sufficiently 

allege direct infringement by Gearbox.6 

To the extent Symbology argues that its infringement contentions served under Patent 

Local Rule 3-1 save its claims from dismissal, the Court should reject that argument. When 

deciding a motion to dismiss under Rule 12(b)(6), the court “may not look beyond the pleadings 

in ruling on the motion.” Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996) (citing McCartney v. 

First City Bank, 970 F.2d 45, 47 (5th Cir. 1992)). The Fifth Circuit has construed “the complaint, 

any documents attached to the complaint, and any documents attached to the motion to dismiss 

that are central to the claim and referenced by the complaint” to be within the pleadings. Lone 

Star Fund V (U.S.) L.P v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Here, 

Symbology’s infringement contentions are outside the pleadings. They were not attached to, 

6

 The Complaint’s passing reference to “QR Codes” that are “used as part of Gearbox Software 

game lineup” is insufficient to plead alleged infringement. Indeed, it is not feasible that the mere 

use of “QR Codes”—a technology that was released in 1994, over fifteen years earlier than the 

earliest claimed priority date (Complaint, ¶ 25)—meets the claim elements. Nor does Symbology 

allege otherwise. (See generally id., Exs. E, F, G, H.) In sum, Symbology does not, and cannot, 

allege that “QR Codes” alone infringe its patents. 

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referenced by, or in any other way noted by the Complaint. They therefore cannot save 

Symbology’s defective claims against Gearbox from dismissal. 

Moreover, even if the Court were to consider Symbology’s infringement contentions in 

deciding this motion to dismiss—which it should not—the contentions are nonetheless insufficient 

to state claims of infringement as to Gearbox. Importantly, the infringement contentions—like the 

Complaint—identify the “accused instrumentalities” as comprising only “Valve products”—not 

Gearbox products. (See Kaempf Decl., ¶ 3.) At most, Symbology asserts that “upon information 

and belief” Gearbox infringes “during internal testing of the functionalities described herein.” (Id. 

¶ 3.) But Gearbox provides no factual basis for such speculation regarding Gearbox’s “internal 

testing.” (Id.) Nor is that speculation plausible. Indeed, there is no reason why Gearbox, a video 

game developer, would be performing internal testing of a QR code purportedly used for logging 

into Valve’s gaming platform—a platform made for game users. (See, e.g., Complaint, Ex. G at 3 

(identifying as allegedly infringing the “QR code sign in,” which can be used “to sign into Steam 

instead of entering a password”).) Symbology’s one-sentence, conclusory assertion of alleged 

“internal testing” by Gearbox is not only outside the pleadings, but is entirely speculative and thus 

provides no plausible basis for infringement. Symbology’s claims as to Gearbox should therefore 

be dismissed. See Nu-You Techs., LLC v. Beauty Town Int’l. Inc., No. 3:15-CV-03433-N, 2016 

WL 4717991, at *2 (N.D. Tex. 2016) (dismissing direct infringement claim that relied on 

speculative allegations about performing the claimed Method). 

B. Symbology’s Complaint Fails to Plausibly State a Claim of Indirect 

Infringement Against Gearbox 

Symbology’s Complaint also fails to make any adequate allegation of indirect 

infringement. To adequately plead a claim of indirect infringement, a plaintiff must plausibly plead 

an underlying act of direct infringement. Qwikcash, LLC v. Blackhawk Network Holdings, Inc., 

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9 

No. 4:19-CV-876-SDJ, 2020 WL 6781566, at *5 (E.D. Tex. Nov. 17, 2020) (citing In re Bill of 

Lading, 681 F.3d 1323, 1334 (Fed. Cir. 2012) (“Where a plaintiff has not adequately pleaded an 

underlying act of direct infringement, theories of indirect infringement must be dismissed.”). Here, 

as discussed above, Symbology does not allege anywhere in its pleadings that any Gearbox 

technology infringes the asserted patents. Symbology’s Complaint therefore fails to state a claim 

of indirect infringement. 

Moreover, Symbology fails to allege the additional requirements for induced infringement. 

Specifically, the Complaint fails to allege that Gearbox had specific intent to encourage any third 

party’s alleged infringement. To sufficiently plead specific intent, a complaint must allege an 

“affirmative step” taken by the defendant “to bring about the desired result” of inducing 

infringement. Tierra Intelectual. Borinquen, Inc., No. 2:13-CV-38-JRG, 2014 WL 894805, at 

*5-6 (E.D. Tex. Mar. 4, 2014) (“the law requires evidence of affirmative steps . . . because such 

an evidentiary hurdle ensures the availability of useful products and protects neutral market 

participants who are indifferent to the possibility of infringement.”). Here, the Complaint is silent 

as to any Gearbox actions that could be construed as an “affirmative act” inducing infringement 

or that support an inference that Gearbox had the requisite “specific intent” to induce infringement. 

See id. Because the Complaint does not, and cannot, allege that Gearbox has taken any affirmative 

steps to encourage the use of a feature on another company’s product (i.e., Valve’s QR codes used 

to sign in to Valve’s Steam App), Symbology has not adequately pleaded any claim of induced 

infringement, and such claims against Gearbox should be dismissed on this basis. 

Further, the Court should again reject any attempt by Symbology to rely on its infringement 

contentions. As discussed above, such infringement contentions are outside the pleadings and 

therefore cannot save Symbology’s defective claims as to Gearbox from dismissal. Moreover, 

even if the Court considers such contentions (it should not), the contentions remain insufficient to 

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10 

plausibly state a claim of indirect infringement. Symbology merely states in a conclusory manner 

that Gearbox induces “its customers to sign in on Steam application (provided by Valve 

Corporation) in order to access and purchase [Gearbox’s] games.” (Kaempf Decl., ¶ 4.) But 

nowhere in the infringement contentions does Symbology identify any affirmative acts by Gearbox 

that purportedly induce customers to sign in on Steam in the allegedly infringing manner. (Id.) 

Symbology does not even allege that Gearbox has knowledge of Valve’s QR code, let alone that 

Gearbox had knowledge that the QR code is allegedly infringing. (Id.) Tierra, 2014 WL 894805, 

at *2 (indirect infringement requires that “defendant knew of the patent and that the acts in question 

would infringe” and “that the defendant had specific intent to encourage the third party’s 

infringement.”). Because Symbology does not plead any claim of indirect infringement, and 

because any such claim of indirect infringement would be simply implausible in light of the fact 

that the accused product is another company’s product, the Court should dismiss any indirect 

infringement claims as to Gearbox. 

C. Symbology’s Complaint Fails to State a Claim of Willful Infringement by 

Gearbox 

Finally, Symbology’s willful infringement claim should be dismissed, as Symbology does 

not plausibly state a claim of willful infringement against Gearbox. “Willfulness is a matter of 

culpability and state of mind, and the degree of culpability required has been described as ‘willful, 

wanton, malicious, bad-faith, deliberate, consciously wrongful, flagrant, or ... characteristic of a 

pirate.” Fractus, S.A. v. TCL Corp., No. 2:20-CV-00097-JRG, 2021 WL 2483155, at *4 (E.D. 

Tex. 2021) (quoting Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1932 (2016). In order 

to sufficiently state a claim of willful infringement, the complaint must allege both knowledge of 

the patents-in-suit and some factual allegations supporting an inference of culpable conduct. 

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11 

See id. (finding failure to state a claim of willful infringement where the complaint only alleged 

notice of the asserted patents and not any culpable conduct). 

Here, Symbology’s Complaint does not (and cannot) allege that Gearbox had knowledge 

of the asserted patents or knowledge of any allegation of infringement. Instead, the Complaint 

merely alleges that Symbology had communications with an unspecified “Defendant.” (Complaint 

¶ 111.) Such language attempting to lump Valve and Gearbox together, and attribute any 

“communications” Symbology allegedly had with Valve to Gearbox, again fails to state a plausible 

claim as to Gearbox. Accordingly, the claims of willful infringement against Gearbox should be 

dismissed. Doe, 2019 WL 1301998, at *13. 

VI. CONCLUSION 

For the foregoing reasons, Gearbox respectfully requests that the Court dismiss the claims 

against Gearbox. 

Dated: January 2, 2024 Respectfully submitted, 

By: /s/ Michael J. Sacksteder 

Michael J. Sacksteder 

CA Bar No. 191605 (Admitted to E.D. Texas)

Email: msacksteder@fenwick.com 

FENWICK & WEST LLP 

555 California Street, 12th Floor 

San Francisco, CA 94104 

Telephone: (415) 875-2300 

Jessica M. Kaempf 

WA Bar No. 51666 (Admitted to E.D. Texas) 

Email: jkaempf@fenwick.com 

FENWICK & WEST LLP 

401 Union Street, 5th Floor 

Seattle, WA 98101 

Telephone: (206) 389-4510 

Attorneys for Gearbox Software, L.L.C.

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CERTIFICATE OF SERVICE 

 The undersigned hereby certifies that a true and correct copy of the above and foregoing 

document has been served to all counsel of record who are deemed to have consented to electronic 

service via the Court’s CM/ECF system. 

Dated: January 2, 2024 /s/ Michael J. Sacksteder 

Michael J. Sacksteder 

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