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 THE SECOND AMENDED COMPLAINT 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 ....................................2

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

A. Symbology’s Second Amended 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 Second Amended 

Complaint Are Not Directed to Gearbox .................................................................6

IV. LEGAL STANDARD ..........................................................................................................6

V. ARGUMENT .......................................................................................................................7

A. Symbology’s Second Amended Complaint Fails to Plausibly Plead 

Direct Infringement by Gearbox ..............................................................................7

1. Symbology’s Only Plausible Claims of Direct Infringement 

Are Directed to Valve, Not Gearbox ...............................................7

2. The Conclusory Language of Symbology’s Second 

Amended Complaint is Insufficient to State a Claim of 

Direct Infringement Against Gearbox ...........................................10

B. Symbology’s Second Amended Complaint Fails to Plausibly State a 

Claim of Indirect Infringement Against Gearbox ..................................................11

C. Symbology’s Second Amended Complaint Fails to State a Claim of 

Willful Infringement by Gearbox ..........................................................................13

VI. CONCLUSION ..................................................................................................................14

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TABLE OF AUTHORITIES 

Page(s) 

CASES

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .........................................................................................................6, 7, 10 

Baker v. Putnal, 

75 F.3d 190 (5th Cir. 1996) .......................................................................................................9 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) ...................................................................................................................2 

Callier v. Nat’l United Grp., LLC, 

No. 21-CV-71-DB, 2022 WL 4088205 (W.D. Tex. Sept. 6, 2022) ...........................................7 

Cobarobio v. Midland Cnty., 

No. 13-CV-00111-RAJ, 2015 WL 13608102 (W.D. Tex. Jan. 7, 2015), aff’d, 

695 F. App’x 88 (5th Cir. 2017) ................................................................................................8 

Doe v. Yackulic, 

No. 18-CV-084-ALM-CAN, 2019 WL 1301998 (E.D. Tex. Feb. 19, 2019) ......................7, 14 

EMED Techs. Corp. v. Repro-Med Sys., Inc., 

No. 17-CV-00728-WCB-RSP, 2018 WL 2544564 (E.D. Tex. June 4, 2018) ...........................3 

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

No. 20-CV-00097-JRG, 2021 WL 2483155 (E.D. Tex. June 2, 2021) .............................13, 14 

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

594 F.3d 383 (5th Cir. 2010) .....................................................................................................9 

Martinez v. City of N. Richland Hills, 

846 F. App’x 238 (5th Cir. 2021) ..............................................................................................7 

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

No. 15-CV-03433-N, 2016 WL 4717991 (N.D. Tex. July 7, 2016) ....................................9, 10 

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

No. 19-CV-876-SDJ, 2020 WL 6781566 (E.D. Tex. Nov. 17, 2020) .....................................11 

Ruby Sands LLC v. Am. Nat’l Bank of Tex., 

No. 15-CV-1955-JRG, 2016 WL 3542430 (E.D. Tex. June 28, 2016) .............................10, 11 

Sec. & Exch. Comm’n v. First Fin. Grp. of Tex., 

645 F.2d 429 (5th Cir. 1981) .....................................................................................................2 

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TABLE OF AUTHORITIES 

(Continued) 

Page(s) 

 iii 

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

No. 13-CV-38-JRG, 2014 WL 894805, at *5-6.................................................................12, 13 

STATUTES

28 U.S.C. § 1400(b) .........................................................................................................................3 

35 U.S.C. §§ 271(a)–(c) .............................................................................................................5, 11 

OTHER AUTHORITIES

Fed. R. Civ. P. 8(a) ..........................................................................................................................6 

Fed. R. Civ. P. 12(b)(6)......................................................................................................1, 6, 9, 11 

Patent Rule 3-1 .................................................................................................................................9 

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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. 

Nearly two months ago, on January 2, 2024, Gearbox filed a Motion to Dismiss the 

Original Complaint (Dkt. 31), in which Gearbox explained that Symbology did not allege 

infringement by any Gearbox products, let alone articulate any plausible theories of infringement. 

Now, after twice amending its complaint, Symbology still fails to remedy those deficiencies, and 

Symbology’s Second Amended Complaint (Dkt. 40) (“SAC”) suffers from the same fatal flaws.1 

Indeed, just like the Original Complaint (Dkt. 1) (“Original Complaint”), the only non-conclusory 

allegations of infringement are still directed to the other defendant in the case, Valve Corporation 

(“Valve”), which is a wholly separate entity from Gearbox. Gearbox’s amendments merely added 

three paragraphs which are entirely conclusory and simply cut-and-paste language from the patent 

statute. Such conclusory, factually-unsupported paragraphs are insufficient to save Symbology’s 

SAC from dismissal, particularly where Symbology’s claim charts confirm that its infringement 

allegations are not directed to Gearbox or Gearbox’s products at all. 

Symbology included Gearbox in this case solely in an attempt to manufacture venue as to 

Valve, and its infringement allegations are directed to that party, not Gearbox.2 Symbology’s 

attempt to conflate these two defendants, and to attribute the allegedly infringing acts of one 

1

 Symbology has not filed an opposition to either Gearbox’s Motion to Dismiss its Original 

Complaint, nor Gearbox’s Motion to Dismiss its First Amended Complaint. Those motions remain 

pending. As explained in this Motion, Symbology’s SAC continues to suffer from the same 

deficiencies as its Original Complaint and its First Amended Complaint (Dkt. 35) (“FAC”). 

2

 Valve has filed multiple Motions to Dismiss for Improper Venue. (Dkts. 11, 37.) In these 

motions, Valve explains that Symbology is merely using “Gearbox in a transparent attempt to 

manufacture venue against Valve.” (Dkt. 11 at 7; Dkt. 37 at 11.) 

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defendant (Valve) to another defendant (Gearbox), is improper. The SAC fails to state claims of 

infringement and willfulness as to Gearbox and, accordingly, these claims should be dismissed. 3

II. STATEMENT OF ISSUES TO BE DECIDED BY THE COURT 

The issue to be decided is whether Symbology’s SAC adequately states a claim for relief, 

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

whether the SAC adequately states claims of direct infringement, indirect infringement, and willful 

infringement by Gearbox. 

III. FACTUAL BACKGROUND 

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

Patent Nos. 8,651,369 (“the ’369 Patent”) and 8,936,190 (“the ’190 Patent”). (See SAC at 1.) The 

sole named inventor of each of the asserted patents is Leigh M. Rothschild. (See Original 

Complaint, Exs. C, D.)4 According to the SAC, the asserted patents 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.” (SAC ¶ 24.) 

A. Symbology’s Second Amended 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 SAC. (SAC ¶¶ 2-3.) 

Although Valve and Gearbox are wholly different entities, the SAC almost exclusively refers to 

3

 As shown by Symbology’s two amended complaints, both of which lack any allegations that 

overcome the deficiencies in its Original Complaint, Symbology has merely been amending its 

complaint in order to delay resolution of both Defendant Gearbox’s Motion to Dismiss for Failure 

to State a Claim and Defendant Valve’s Motion to Dismiss for Improper Venue. It is clear from 

Symbology’s amendments that it is unable to remedy the deficiencies in its complaint. Should 

Symbology attempt to again amend its complaint, Gearbox expects to request the Court to modify 

the DCO, to prevent an endless cycle of futile briefing. 

4

 Unlike the Original Complaint, Symbology’s SAC does not include any exhibits, e.g., the 

asserted patents and the charts on which Symbology’s infringement claims are based. The Court 

may take judicial notice of its own records. Sec. & Exch. Comm’n v. First Fin. Grp. of Tex., 645 

F.2d 429, 433 n.6 (5th Cir. 1981). 

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Valve and Gearbox collectively as “Defendant.” (See id. ¶ 3.) However, the SAC does not allege, 

or provide any facts supporting, any assertion that Valve and Gearbox are a single entity, because 

they are not. The SAC 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, 13 at Fig. 6.) The two video games on which Valve and Gearbox collaborated nearly two 

decades ago are not accused products. (See id. ¶ 35, 42–45.) 

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

(See Dkts. 11, 37.) Specifically, in concluding that venue is proper, the SAC alleges that 

“defendant Gearbox is physically located in this District.” (SAC ¶ 14.)5 Thus, the only place of 

business of either Defendant in this District mentioned is the place of business of Gearbox. (See 

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

presence in this District” (id. ¶ 14) 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 SAC identifies the accused instrumentalities as “QR codes associated with an app . . . 

as disclosed in Symbology’s Preliminary Infringement Contentions (herein included by 

reference).” (SAC ¶ 35.) While the SAC does not specify the “Defendant” whose “app” is 

5

 While the SAC also alleges that Valve maintains licensing agreements with gaming 

establishments in Eastern District of Texas, such licensing agreements (to the extent any such 

agreements exist) would not be sufficient to establish venue for Valve under 28 U.S.C. § 1400(b). 

See, e.g., EMED Techs. Corp. v. Repro-Med Sys., Inc., No. 17-CV-00728-WCB-RSP, 2018 WL 

2544564, at *2 (E.D. Tex. June 4, 2018) (collecting cases to support the proposition that the place 

of business of an independently owned and operated distributor cannot establish venue for its 

supplier). 

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associated with the accused QR codes,6 the only claim charts that are within the pleadings in this 

case make clear that the “Defendant” being referenced is Valve. 

Specifically, the claim charts attached to the Original Complaint identify the allegedly 

infringing product as the “Steam App,” which 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 Original 

Complaint., Ex. G at, e.g., 3 (identifying accused QR code); see also Dkt. 37 at 4 (Valve 

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

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

Gearbox products or services. (See generally, Original Complaint, Exs. G, H.) 

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

infringement contentions on Gearbox.7 (See Declaration of Jessica M. Kaempf (“Kaempf Decl.”) 

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

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

platform. (Id. ¶ 3.) While the SAC purports to incorporate Symbology’s infringement contentions 

by reference (see SAC ¶ 35), Symbology did not attach its infringement contentions to its SAC 

(see generally, id.).8 

In an attempt to remedy its failure to state a claim of infringement as to Gearbox, 

Symbology’s SAC added an “Accused Functionality” Section with three paragraphs alleging 

6

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

infringed and continues to infringe Claims[]1, 7, and 24 of the ’369 Patent by making, using, 

importing, selling, and/or offering for sale the Accused Instrumentalities”—again, without 

specifying the “Defendant.” (SAC ¶ 49 (emphasis added); see also id. ¶ 97.) 

7

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

provided in the initial case management order. (Kaempf Decl. ¶ 2.) 

8

 While Symbology attached these infringement contentions to a “Revised” Second Amended 

Complaint, Symbology’s counsel subsequently retracted that filing and the filing is now marked 

on the docket as “Filed in Error.” (Dkt. 41.) 

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infringement by Gearbox. But those allegations merely paste in the statutory language of 35 U.S.C. 

§§ 271(a)–(c) in a manner that defies the conventions of grammar and underscores the conclusory 

nature of the pasted-in allegations, which Symbology did not even attempt to conform to the 

structure of the sentences in the complaint. (Id. ¶¶ 42–44.) Specifically, the entirety of those 

paragraphs are as follows: 

42. In [sic] information and belief, Defendant Gearbox Software makes, 

uses, offers to sell, or sells any patented invention, within the United States, or 

imports into the United States any patented invention during the term of the patent 

therefor, infringes the patent. 

43. Additionally, on information and belief, Defendant Gearbox Software 

actively induces infringement of a patent shall be liable as an infringer. 

44. Additionally, on information and belief, Defendant Gearbox Software 

offers to sell or sells within the United States or imports into the United States a 

component of a patented machine, manufacture, combination, or composition, or a 

material or apparatus for use in practicing a patented process, constituting a material 

part of the invention, knowing the same to be especially made or especially adapted 

for use in an infringement of such patent, and not a staple article or commodity of 

commerce suitable for substantial non-infringing use, shall be liable as a 

contributory infringer. 

(Id.)

9

 Nowhere in this new section or elsewhere in the SAC does Symbology identify any Gearbox 

product, functionality, or action that could form the basis of an infringement action. (Id. ¶¶ 35–

36, 42–44; see generally, id.) Indeed, this section fails to indicate whether Symbology is accusing 

Gearbox of infringing both or just one of the asserted patents. (See, e.g., Id. ¶ 43 (“Additionally, 

on information and belief, Defendant Gearbox Software actively induces infringement of a patent

shall be liable as an infringer.”) (emphasis added).) 

9

 Symbology also added paragraph 45, which contains infringement allegations directed to 

Valve (not Gearbox). (SAC ¶ 45.) 

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C. The “Willful Infringement” Allegations in the Second Amended Complaint 

Are Not Directed to Gearbox 

Unlike the Original Complaint, the SAC contains no specific allegations of willful 

infringement.10 (See generally, SAC.) The SAC contains only generic statements, such as 

“[d]efendant has knowledge of its infringement of the ’190 Patent at least as of the service of the 

present complaint” (id. ¶ 96 (emphasis added)), and that “[t]he service of this Complaint, in 

conjunction with the served infringement contentions constitutes actual knowledge of 

infringement as alleged here” (id. ¶ 99). Nowhere does Symbology assert that Gearbox 

specifically had knowledge of any purported infringement by Gearbox. Importantly, in its Original 

Complaint, Symbology did not make any allegations plausibly stating a claim of infringement by 

Gearbox. (See Dkt. 31; see also Original Complaint.)11 

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). “Threadbare recitals of the elements of a cause of action, supported 

by mere conclusory statements, do not suffice” to plead the factual content required for a claim to 

have facial plausibility. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must “contain 

10 The Original Complaint contained merely three paragraphs, which are now omitted in the 

SAC, purportedly supporting willful infringement. (Original Complaint ¶¶ 111–113 (alleging that 

Symbology had “communications” with an unspecified “Defendant” and that an unspecified 

“Defendant” purportedly acknowledged and had knowledge of the asserted patents and alleged 

infringement).) Notably, the Original Complaint failed to specify the “Defendant” subject of its 

willfulness allegations, and unsurprisingly never identified any alleged communication with 

Gearbox, since no such pre-complaint communications occurred. Those prior allegations—which 

again, have now been omitted from the SAC—were insufficient to adequately plead willful 

infringement in any event. (See Dkt. 31 at 10–11.) 

11 Symbology has also now removed its request for “treble damages for willful infringement.” 

(Compare Amended Complaint, “Prayer for Relief” to SAC, “Prayer for Relief.”) 

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 

Id. (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.” Id. 

V. ARGUMENT 

A. Symbology’s Second Amended Complaint Fails to Plausibly Plead Direct 

Infringement by Gearbox 

Because the SAC 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 should be dismissed. 

1. Symbology’s Only Plausible Claims of Direct Infringement Are 

Directed to Valve, Not Gearbox 

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. 18-CV-084-ALM-CAN, 2019 WL 

1301998, at *13 (E.D. Tex. Feb. 19, 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. 21-CV-71-DB, 2022 WL 4088205, at *4 (W.D. Tex. Sept. 6, 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. 13-CV-00111-RAJ, 2015 WL 

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13608102, at *9 (W.D. Tex. Jan. 7, 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 SAC merely attempts to lump together Gearbox with Valve, without 

pleading facts to support a claim of infringement specific to Gearbox. Neither the SAC nor the 

claim charts attached to the Original Complaint identify any allegedly infringing products or 

services of Gearbox. (See generally, SAC; Original Complaint, Exs. G, H.) The claim charts 

attached to the Original Complaint allege infringement solely by Valve’s Steam platform, making 

clear that the only Defendant that Symbology accuses of infringement is Valve, not Gearbox. 

(Original Complaint, Exs. G, H.) 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 SAC ¶¶ 7, 13 at 

Fig. 6), is insufficient to state a claim of infringement. Neither game 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. (See generally, id.; Original Complaint, Exs. G, H.) Nor 

does the SAC plead any facts supporting any allegation that Gearbox somehow allegedly infringes 

through Valve’s product. (See generally, SAC.) Indeed, nothing in the SAC suggests that Gearbox 

makes, uses, offers to sell, or sells the accused Valve product. (See id.) Symbology cannot save 

its complaint from dismissal with its allegation that an unspecified “Defendant” infringes “by 

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having its employees internally test and use the Accused Instrumentalities.” 12 (Id. ¶ 50.) Again, 

Symbology does not specify which “Defendant” it believes purportedly conducts internal testing. 

Moreover, to the extent Symbology contends that Defendant Gearbox performs such “internal 

testing,” Symbology provides no factual basis to support that allegation. (Id.) Nor is that 

speculation plausible. The SAC contains 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., Original 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”).) This assertion is entirely speculative and provides no plausible basis for 

infringement. See Nu-You Techs., LLC v. Beauty Town Int’l Inc., No. 15-CV-03433-N, 2016 WL 

4717991, at *2 (N.D. Tex. July 7, 2016) (dismissing direct infringement claim that relied on 

speculative allegations about performing the claimed method). 

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).

12 Symbology’s Amended Complaint only alleges that “Defendant” infringes “at least Claim 

1” of the ’369 patent through internal testing. No such allegations are made for the ’190 patent. 

(Compare SAC ¶ 50 with id. ¶ 98.) 

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Symbology’s infringement contentions, by contrast, are outside the pleadings. The 

infringement contentions were not attached to the SAC and have not been included as exhibits in 

any other pleadings. Thus, they remain outside the pleadings in this case and cannot be used to 

save Symbology’s defective claims against Gearbox from dismissal.13 

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 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.) As discussed 

above, these assertions of infringement via internal testing are entirely speculative and thus fail to 

save Symbology’s claims as to Gearbox from dismissal. See Nu-You, 2016 WL 4717991, at *2. 

2. The Conclusory Language of Symbology’s Second Amended 

Complaint is Insufficient to State a Claim of Direct Infringement 

Against Gearbox 

Nor can Symbology save its complaint from dismissal with the three conclusory, cut-andpaste paragraphs it added into the SAC. (SAC ¶¶ 42–44). It is well-established that “a formulaic 

recitation of the elements of a cause of action” for patent infringement is insufficient to state a 

claim under the Iqbal standard. Ruby Sands LLC v. Am. Nat’l Bank of Tex., No. 15-CV-1955-

JRG, 2016 WL 3542430, at *4–5 (E.D. Tex. June 28, 2016) (citing Iqbal, 556 U.S. at 678) (J. 

Gilstrap) (dismissing claims of direct and indirect infringement in a complaint, explaining that 

13 Symbology’s infringement contentions are the same charts that Symbology attached to the 

“Revised” Second Amended Complaint, which was subsequently marked as “Filed in Error.” 

(Dkt. 41.) Accordingly, even if Symbology were to attempt to add those charts into the complaint, 

they are insufficient for the reasons discussed herein. 

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Rule 12(b) was “meant to address” “the kind of cut-and-paste pleading practices” displayed by the 

plaintiff). 

Here, Symbology’s new paragraphs 42–44 do nothing more than engraft the words “on 

information and belief, Defendant Gearbox Software" onto the statutory language of 35 U.S.C. 

§§ 271(a)–(c) in a manner that renders the paragraphs grammatically nonsensical. These 

paragraphs fail to identify any Gearbox product, technology, or action as infringing and do not 

even identify the allegedly-infringed patent. Accordingly, because the only Gearbox-specific 

infringement allegations in the SAC are conclusory and reflect merely “cut-and-paste pleading 

practices” that this Court has previously found to be insufficient to meet the Rule 12(b)(6) standard, 

dismissal is proper. See Ruby Sands, 2016 WL 3542430, at *5. 

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

Indirect Infringement Against Gearbox 

Symbology’s SAC 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., No. 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, 1333 (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 SAC therefore fails to state a claim of indirect 

infringement. 

Moreover, Symbology fails to allege any facts plausibly supporting a claim of indirect 

infringement. As an initial matter, as discussed above, the SAC’s conclusory allegations simply 

parrot the statutory language. (SAC ¶¶ 43–44.) The SAC provides no additional facts to support 

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that Gearbox has taken any affirmative steps to encourage the infringement of the asserted patents 

via Valve’s Steam product or otherwise (i.e., for induced infringement). (Id.) Nor does the SAC 

plead any facts that Gearbox offers to sell or sells any component of the purported invention, let 

alone that such a component constitutes a material part of the invention and is especially made or 

especially adapted for use in an infringement (i.e., for contributory infringement). Indeed, the 

SAC never even identifies any “component” of the patented invention sold by Gearbox—because 

none exists. Thus, Symbology has not adequately pleaded any claim of induced infringement or 

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

Moreover, the SAC fails to even allege that Gearbox had specific intent required for a claim 

of induced 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. v. ASUS Comput. Int’l, Inc., No. 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 SAC 

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. The SAC 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). 

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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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 Second Amended 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. 20-CV-00097-JRG, 2021 WL 2483155, at *4 (E.D. Tex. 

June 2, 2021) (quoting Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 103-104 (2016). As an 

initial matter, it is axiomatic that a claim of infringement is a prerequisite to a claim of willful 

infringement. As discussed above, the SAC fails to allege infringement by Gearbox; the SAC thus 

fails to state a claim of willful infringement. 

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Moreover, in order to sufficiently state a claim of willful infringement, the complaint must 

allege knowledge of the purported infringing conduct. 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 SAC does not (and cannot) allege that Gearbox had 

knowledge of any allegation of infringement. Instead, the SAC merely alleges that an unspecified 

“Defendant” had knowledge of alleged infringement, based entirely on service of the Original 

Complaint. (SAC ¶¶ 96, 99.) But the Original Complaint made no allegations whatsoever 

supporting alleged infringement by Gearbox. Indeed, Gearbox moved to dismiss Symbology’s 

Original Complaint on the basis that it failed to state a claim of infringement against Gearbox (Dkt. 

31); Symbology did not oppose Gearbox’s motion, and instead filed a FAC (which Gearbox also 

moved to dismiss on the same grounds) (see Dkt. 36) and the SAC, both of which also fail to allege 

any infringement by Gearbox. Symbology’s language that again attempts to lump Valve and 

Gearbox together—attributing both purported infringement and purported knowledge of 

infringement to Gearbox—is insufficient to state a plausible claim. 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: February 27, 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

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15 

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: February 27, 2024 /s/ Michael J. Sacksteder 

Michael J. Sacksteder 

Case 2:23-cv-00419-JRG Document 44 Filed 02/27/24 Page 20 of 20 PageID #: 751