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 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 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 ..................................................4

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

Not Directed to Gearbox ..........................................................................................5

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

V. ARGUMENT .......................................................................................................................6

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

Infringement by Gearbox .........................................................................................6

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

Indirect Infringement Against Gearbox ...................................................................9

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

Infringement by Gearbox .......................................................................................11

VI. CONCLUSION ..................................................................................................................12

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TABLE OF AUTHORITIES 

Page(s) 

CASES

Ashcroft v. Iqbal, 

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

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) ...........................................6 

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) ................................................................................................7 

Doe v. Yackulic, 

No. 18-CV-084-ALM-CAN, 2019 WL 1301998 (E.D. Tex. Feb. 19, 2019) ......................6, 12 

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

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) .............................11, 12 

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) ..............................................................................................6 

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

No. 15-CV-03433-N, 2016 WL 4717991 (N.D. Tex. July 7, 2016) ......................................8, 9 

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

No. 19-CV-876-SDJ, 2020 WL 6781566 (E.D. Tex. Nov. 17, 2020) .....................................10 

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

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

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

No. 13-CV-38-JRG, 2014 WL 894805, at *5-6.................................................................10, 11 

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TABLE OF AUTHORITIES 

(Continued) 

Page(s) 

 iii 

OTHER AUTHORITIES

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

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

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. 

Symbology’s Amended 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 Amended 

Complaint, and the charts attached to the Original Complaint, 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 Amended Complaint fails to state claims of infringement 

and willfulness as to Gearbox and, accordingly, these claims should be dismissed.2 

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.) 

2

 After Gearbox filed a Motion to Dismiss Symbology’s Original Complaint (Dkt. 31), 

Symbology filed an Amended Complaint, (Dkt. 35). Symbology has not opposed Gearbox’s 

Motion to Dismiss its Original Complaint (see generally, Amended Complaint), and Gearbox’s 

Motion to Dismiss the Original Complaint is still pending. Moreover, nothing in the Amended 

Complaint remedies Symbology’s failure to state a claim of infringement against Gearbox in its 

Original Complaint. As explained in Section V of this Motion, Symbology’s Amended Complaint 

suffers from the same deficiencies as its Original Complaint. Therefore, Gearbox renews its 

Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) as to Symbology’s Amended Complaint. 

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II. STATEMENT OF ISSUES TO BE DECIDED BY THE COURT 

The issue to be decided is whether Symbology’s Amended 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 Amended Complaint 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 Dkt. 35 

(“Amended Complaint”) at 1.) The sole named inventor of each of the asserted patents is Leigh 

M. Rothschild. (See Dkt. 1 (“Original Complaint”), Exs. C, D.)3 According to the Amended 

Complaint, 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.” (Amended Complaint ¶ 24.) 

A. Symbology’s 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 Amended Complaint. 

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

Amended Complaint almost exclusively refers to Valve and Gearbox collectively as “Defendant.”4 

3

 Unlike the Original Complaint, Symbology’s Amended Complaint 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). 

4

 Symbology’s Complaint references Gearbox individually only a few times, mainly 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 Amended Complaint ¶ 3 (identifying Gearbox’s principal place of business); id. ¶ 7, ¶ 13 at 

Fig. 6 (discussing prior collaboration between Valve and Gearbox); id. ¶ 14 (noting Gearbox is 

physically located in the Eastern District of Texas); id. ¶36 (noting that Gearbox was served with 

Symbology’s preliminary infringement contentions).) 

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(See id. ¶ 3.) However, the Amended Complaint does not allege, or provide any facts supporting, 

any assertion that Valve and Gearbox are a single entity, because they are not. The Amended 

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, 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.) 

The Amended 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 

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

a regular and established business presence in this District.” (Amended Complaint ¶ 14.) The 

Amended Complaint alleges that Valve maintains licensing agreements with gaming 

establishments in Eastern District of Texas and therefore venue is proper as to Valve. Such 

licensing agreements—even if true—are not sufficient to establish Valve’s physical presence in 

this District. See, e.g., EMED Techs. Corp. v. Repro-Med Sys., 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). Thus, the only place of business of either Defendant in this District mentioned is 

the place of business of Gearbox. (See Amended Complaint ¶¶ 2–3.) In other words, the Amended 

Complaint 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). 

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

Codes Used to Sign on to Valve’s Steam App 

The Amended Complaint identifies the accused instrumentalities as “QR codes associated 

with an app . . . as disclosed in Symbology’s Preliminary Infringement Contentions (herein 

included by reference).” (Amended Complaint ¶ 35.) While the Amended Complaint does not 

specify the “Defendant” whose “app” is associated with the accused QR codes,5 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 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 Original Complaint., 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, Original Complaint, Exs. G, 

H; see also Dkt. 11 at 7 (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 Gearbox6 (see Declaration of Jessica M. Kaempf (“Kaempf Decl.”) 

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

5

 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.” (Amended Complaint ¶ 45 (emphasis added); see also id. ¶ 97.) 

6

 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.) 

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

platform. (Id. ¶ 3.) While the Amended Complaint purports to incorporate Symbology’s 

infringement contentions by reference (see Amended Complaint ¶ 36), Symbology did not attach 

its infringement contentions to its Amended Complaint (see generally, Amended Complaint). 

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

Directed to Gearbox 

Unlike the Original Complaint, the Amended Complaint does not contain specific 

allegations of willful infringement.7 (See generally, Amended Complaint.) The Amended 

Complaint 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 (Gearbox’s Motion 

to Dismiss for Failure to State a Claim of Infringement); see also Original Complaint.) 

Although Symbology’s Amended Complaint does not include any allegations specific to 

Gearbox regarding purported “willful infringement,” Symbology nonetheless requests “treble 

damages for willful infringement.” (Amended Complaint, “Prayer for Relief” at 14.) 

7

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

Amended Complaint, 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 willful 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 Amended Complaint—were insufficient to 

adequately plead willful infringement. (See Dkt. 31 at 10–11.) 

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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.” Id. 

V. ARGUMENT 

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

Infringement by Gearbox 

Because the Amended 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. 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 

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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 

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 Amended Complaint merely attempts to lump together Gearbox with 

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

Amended Complaint nor the claim charts attached to the Original Complaint identify any allegedly 

infringing products or services of Gearbox. (See generally, Amended Complaint; 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 Amended 

Complaint ¶ 7), is 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 

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or either of those games. (See generally, id.; Original Complaint Exs. G, H.) Nor does the 

Amended Complaint plead any facts supporting any allegation that Gearbox somehow allegedly 

infringes through Valve’s product. (See generally, Amended Complaint.) Indeed, nothing in the 

Amended Complaint suggests that Gearbox makes, uses, offers to sell, or sells the accused Valve 

product. (See id.) 

Nor can Symbology save its complaint from dismissal with its allegation that an 

unspecified “Defendant” infringes “by having its employees internally test and use the Accused 

Instrumentalities.” 8 (Id. ¶ 46.) Again, Symbology does not specify which “Defendant” it believes 

purportedly conducts internal testing. Moreover, to the extent Symbology contends that it is 

Defendant Gearbox that performs such “internal testing,” Symbology provides no factual basis to 

support that allegation. (Id.) Nor is that speculation plausible. The Amended Complaint 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 one-sentence, 

conclusory assertion of alleged “internal testing” is Symbology’s only assertion of infringement 

that could even possibly be directed at Gearbox. Because this assertion is entirely speculative and 

provides no plausible basis for infringement, Symbology’s claims as to Gearbox should be 

dismissed. 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). 

8

 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 Amended Complaint ¶ 46 with id. ¶ 98.) 

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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). 

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

infringement contentions were not attached to the Amended Complaint 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. 

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. 

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

Indirect Infringement Against Gearbox 

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

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

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10 

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 Amended Complaint therefore fails to 

state a claim of indirect infringement. 

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

Specifically, the Amended 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. 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 

Amended 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 Amended 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 

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11 

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 

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 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). In 

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

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12 

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 Amended Complaint does not (and cannot) allege that Gearbox had 

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

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

Original Complaint. (Amended Complaint ¶¶ 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 an 

Amended Complaint, which continues to 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: January 30, 2024 Respectfully submitted, 

By: /s/ Jessica M. Kaempf 

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 

Case 2:23-cv-00419-JRG Document 36 Filed 01/30/24 Page 16 of 18 PageID #: 335
13 

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 30, 2024 /s/ Jessica M. Kaempf 

Jessica M. Kaempf 

Case 2:23-cv-00419-JRG Document 36 Filed 01/30/24 Page 18 of 18 PageID #: 337