1 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

VDPP LLC,

 Plaintiff,

 v. 

EPSON AMERICA, INC.,

 

 Defendant.

Civil Action No. 2:23-cv-00307-JRG

JURY TRIAL DEMANDED

DEFENDANT EPSON AMERICA, INC.'S MOTION TO DISMISS 

UNDER RULES 12(b)(3) and 12(b)(6)

 

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Table of Contents 

I. STATEMENT OF ISSUES ...............................................................................................5

II. INTRODUCTION..............................................................................................................5

III. BRIEF STATEMENT OF FACTS ..................................................................................6

IV. LEGAL STANDARDS ......................................................................................................8

A. Dismissal Under Rule 12(b)(3) .................................................................................8

B. Dismissal Under Rule 12(b)(6) .................................................................................9

V. ARGUMENT ....................................................................................................................11

A. VDPP's Complaint Should be Dismissed for Improper Venue ..........................11

B. VDPP Fails to State a Claim for Indirect and Willful 

Infringement ............................................................................................................13

C. VDPP Fails to State a Claim for Direct Infringement .........................................15

VI. CONCLUSION ................................................................................................................18

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Table of Authorities 

Cases

Abbott Labs. v. Novopharm Ltd., 

104 F.3d 1305 (Fed. Cir. 1997) ................................................................................................ 13 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .............................................................................................................. 9, 17 

Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007) .............................................................................................................. 9, 17 

Blackburn v. City of Marshall, 

42 F.3d 925 (5th Cir. 1995) ........................................................................................................ 9 

Braspetro Oil Servs., Co. v. Modec (USA), Inc., 

240 F.App’x 612 (5th Cir. 2007) ................................................................................................ 8 

Caldwell v. Palmetto State Savs. Bank of S.C., 

811 F.2d 916 (5th Cir. 1987) ...................................................................................................... 9 

Chapterhouse, LLC v. Shopify, 

2018 WL 6981828 (E.D. Tex. Dec. 11, 2018) .......................................................................... 10 

Diem LLC v. BigCommerce, Inc., 

2017 WL 9935521 (E.D. Tex. May 11, 2017). ................................................................... 15, 18 

DSU Med. Corp. v. JMS Co., Ltd., 

471 F.3d 1293 (Fed. Cir. 2006) ................................................................................................ 10 

Ferrer v. Chevron Corp., 

484 F.3d 776 (5th Cir. 2007) ...................................................................................................... 9 

Fujitsu Ltd. v. Netgear Inc., 

620 F.3d 1321 (Fed. Cir. 2010) ................................................................................................ 10 

Ginter ex rel. Ballard v. Belcher, Prendergast & Laporte, 

536 F.3d 439 (5th Cir. 2008) ...................................................................................................... 9 

Halo Elec., Inc. v. Pulse Elec., Inc., 

579 U.S. 93 (2016) .............................................................................................................. 11, 14 

In re Bill of Lading Transmission & Processing Sys. Pat. Litig., 

681 F.3d 1323 (Fed. Cir. 2012) ................................................................................................ 14 

In re Cray Inc., 

871 F.3d 1355 (Fed. Cir. 2017) .................................................................................................. 8 

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In re Volkswagen, 

28 F.4th 1203 (Fed. Cir. 2022) ................................................................................................. 12 

In re ZTE (USA) Inc., 

890 F.3d 1008 (Fed. Cir. 2018) .................................................................................................. 8 

Kimble v. Marvel Entm’t, LLC, 

576 U.S. 446 (2015) ............................................................................................................ 10, 13 

Logic Devices Inc. v. Apple, Inc., 

2014 WL 60056 (N.D. Cal. Jan. 7, 2014) ................................................................................. 14 

Mass Engineered Design, Inc. v. Ergotron, Inc., 

633 F. Supp. 2d 361 (E.D. Tex. 2009) ...................................................................................... 11 

Patent Harbor, LLC v. DreamWorks Animation SKG, Inc., 

2012 U.S. Dist. LEXIS 114199 (E.D. Tex. July 27, 2012) ...................................................... 15 

Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 

170 F. Supp. 3d 928 (E.D. Tex. 2016) ................................................................................ 11, 14 

Seven Networks, LLC v. Google LLC, 

315 F. Supp. 3d 933 (E.D. Tex. 2018) ........................................................................................ 8 

TC Heartland LLC v. Kraft Foods Group Brands LLC, 

581 U.S. 258 (2017) .................................................................................................................... 8 

Uniloc USA, Inc. v. Avaya Inc., 

2016 WL 7042236 (E.D. Tex. May 13, 2016) .......................................................................... 16 

WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1341 (Fed. Cir. 2016) ............................................... 14 

Westech Aerosol Corp. v. 3M Co., 

927 F.3d 1378 (Fed. Cir. 2019) .................................................................................................. 8 

Other Authorities

28 U.S.C. § 1400(b) .............................................................................................................. 5, 8, 11 

35 U.S.C. § 154(a)(2) .................................................................................................................... 13 

35 U.S.C. § 271(b) ........................................................................................................................ 10 

35 U.S.C. § 271(c) ........................................................................................................................ 10 

Fed. R. Civ. P. 12(b)(3)........................................................................................... 1, 5, 6, 8, 12, 19 

Fed. R. Civ. P. 12(b)(6)..................................................................................... 1, 5, 6, 9, 15, 18, 19 

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Pursuant to Federal Rules of Civil Procedure 12(b)(3) and 12(b)(6), Defendant Epson 

America, Inc. ("Epson") moves to dismiss VDPP, LLC's ("Plaintiff" or "VDPP") Original 

Complaint for Patent Infringement for improper venue and failure to state a claim for each of 

direct, indirect and willful infringement. This motion to dismiss suspends the time to respond to 

the entire complaint. 

I. STATEMENT OF ISSUES

Epson requests dismissal of VDPP's Complaint under Fed. R. Civ. P. 12(b)(3), because 

the Eastern District of Texas is not a proper venue for this lawsuit.

Epson also requests dismissal of the complaint on the basis of Fed. R. Civ. P. 12(b)(6) 

because VDPP has failed to state a plausible claim for each of direct, indirect and willful 

infringement. 

II. INTRODUCTION

VDPP commenced this action by filing a Complaint for Patent Infringement against 

Epson on June 26, 2023 ("Complaint," Dkt. Number 1). In the Complaint, VDPP accuses Epson 

of infringement of a single expired U.S. patent, namely U.S. Patent No. 10,021,380 ("the '380 

Patent"). As an initial matter, VDPP's Complaint lacks sufficient factual allegations to establish 

that Epson has a regular and established place of business in the Eastern District of Texas, as 

required under 28 U.S.C. § 1400(b). Rather, the Complaint identifies a place of business that is 

owned and operated by a third party, Imaging Spectrum.

With respect to the '380 Patent, VDPP's Complaint asserts direct, indirect and willful 

infringement. But its claims are insufficiently pled. VDPP's claims for direct infringement fail to 

satisfy the basic requirements of the Iqbal/Twombly pleading standard; its claims for indirect 

infringement fail to establish any plausible factual allegation that Epson had the requisite 

knowledge of '380 Patent, or the other elements required to plead indirect infringement; and its 

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claim for willful infringement lacks any factual allegations at all. The willful infringement claim 

only appears in the prayer for relief. 

Accordingly, Epson respectfully requests the Court to dismiss VDPP's complaint under 

both Fed. R. Civ. P. 12(b)(3) and Fed. R. Civ. P. 12(b)(6).

III. BRIEF STATEMENT OF FACTS

There is no dispute that Epson is incorporated in California as alleged in the Complaint

and confirmed in the attached supporting Declaration ("Dec." attached as Exhibit A). Thus, 

Epson does not reside in the Eastern District Texas for purposes of venue. Epson also does not 

have any physical places of business in the Eastern District of Texas. Dec. ¶¶ 4 and 5. In the 

Complaint, VDPP identifies the "Epson Certified Solution Center" in Plano, Texas as a regular 

and established place of business of Epson. Complaint ¶2. However, this facility is owned and 

operated by a third party, Imaging Spectrum, as confirmed in Exhibit C to the Complaint.

1

The Complaint alleges infringement of the '380 Patent, which was granted on July 10, 

2018. The '380 Patent expired January 22, 2022. This date is twenty years after the January 22, 

2002 filing date of the '380 Patent's earliest filed U.S. priority application, Application No. 

10/054,607. 

The '380 Patent is titled "Faster State Transitioning for Continuous Adjustable 3Deeps 

Filter Spectacles Using Multi-Layered Variable Tint Materials." The '380 Patent relates to the 

field of motion pictures and can allow a motion picture filmed in 2D to be viewed with a visual 

1 While Plaintiff references Exhibit C in the complaint, Exhibit C was not actually filed with the 

Court. It appears that the same Exhibit was included in a complaint filed against Epson by Ortiz 

& Associates Consulting, LLC (Case No. 2:23-cv-00308-JRG), which is also pending before the 

Court and relies on the same facility to allege proper venue. Attached hereto as Exhibit B.

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effect of three dimensions when viewed through 3Deeps Filter Spectacles. For direct 

infringement, the Complaint alleges the following:

Defendant maintains, operates, and administers systems, products, and services in 

the field of motion pictures that infringes one or more of claims 1-30 of the ‘380 

patent, literally or under the doctrine of equivalents. Defendant put the inventions 

claimed by the ‘380 Patent into service (i.e., used them); but for Defendant’s 

actions, the claimed-inventions embodiments involving Defendant’s products and 

services would never have been put into service. Defendant’s acts complained of 

herein caused those claimed-invention embodiments as a whole to perform, and 

Defendant’s procurement of monetary and commercial benefit from it.

Complaint ¶8. While the Complaint asserts that Epson infringes one or more of claims 1-30, the 

Claim Chart attached to the Complaint only references claim 6 and contains nothing more than 

screenshots from an Epson user manual with conclusory statements that mirror the claim 

language. See Exhibit B to the Complaint ("Claim Chart").

The Complaint’s allegations for induced and contributory infringement are two nearly 

identical paragraphs. Complaint ¶¶ 10 and 11. Both paragraphs allege only that Epson "has

known of the '380 patent and the technology underlying it from at least the filing date of the 

lawsuit." Neither paragraph provides any factual support for knowledge of the '380 Patent prior 

to its expiration or any of the other required elements for induced and contributory infringement. 

In the prayer for relief, VDPP asks the Court to declare Epson's infringement "to be 

willful." Complaint at page 5, ¶ e. However, the body of the Complaint contains no discussion of 

willful infringement and no factual allegations to support the elements of a willful infringement 

claim.2

2 VDPP uses the same boilerplate language for direct and indirect infringement in numerous 

other complaints asserting the '380 Patent. Those same complaints similarly lack any factual 

allegations or discussion to support the VDPP's claims for willful infringement. See, e.g., VDPP 

LLC v. ZTE USA, Inc., Case No. 2:23-cv-00373 (E.D. Tex.); VDPP LLC v. Panasonic 

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IV. LEGAL STANDARDS 

A. Dismissal Under Rule 12(b)(3)

 The burden to establish venue in patent infringement cases rests with the plaintiff. 

Westech Aerosol Corp. v. 3M Co., 927 F.3d 1378, 1382 (Fed. Cir. 2019). Proper venue in this 

case is governed by 28 U.S.C. § 1400(b), the "sole and exclusive provision controlling venue in 

patent infringement actions." TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. 

258, 266 (2017). Under § 1400(b), a patent infringement case may only be brought in the judicial 

district where (1) the defendant resides, or (2) where the defendant has committed acts of 

infringement and has a regular and established place of business. 28 U.S.C. § 1400(b). Whether 

venue is proper under § 1400(b) is an issue unique to patent law and thus governed by Federal 

Circuit precedent. In re: ZTE (USA) Inc., 890 F.3d 1008, 1012 (Fed. Cir. 2018) (citation 

omitted). 

 Under the first prong of § 1400(b), a domestic corporation "resides" only in its state of 

incorporation. TC Heartland, 581 U.S. at 266. As to the second prong, the Federal Circuit has 

interpreted the "regular and established place of business" inquiry to impose three general 

requirements: "(1) there must be a physical place in the district; (2) it must be a regular and 

established place of business; and (3) it must be the place of the defendant. If any statutory 

requirement is not satisfied, venue is improper under § 1400(b)." In re Cray Inc., 871 F.3d 1355, 

1360 (Fed. Cir. 2017). See also Seven Networks, LLC v. Google LLC, 315 F. Supp. 3d 933, 938 

(E.D. Tex. 2018). 

Corporation of North America, Inc., Case No. 3-22-cv-02831 (N.D. Tex.); VDPP LLC v. 

Microsoft Corporation, Case No. 6-22-cv-00362 (W.D. Tex). 

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 In ruling on a Rule 12(b)(3) motion, the Court must initially accept as true all of the well 

pleaded allegations in the complaint and resolve any factual conflicts in the plaintiff’s favor. 

Braspetro Oil Servs., Co. v. Modec (USA), Inc., 240 F.App’x 612, 615 (5th Cir. 2007). 

However, the Court may consider evidence in the record beyond the facts alleged in the 

Complaint and its attachments, including affidavits or evidence submitted by the defendant in 

support of its motion, or by the plaintiff in response. Ginter ex rel. Ballard v. Belcher, 

Prendergast & Laporte, 536 F.3d 439, 449 (5th Cir. 2008). If venue is improper, the Court has 

broad discretion to dismiss the case. Caldwell v. Palmetto State Savs. Bank of S.C., 811 F.2d 916, 

919 (5th Cir. 1987). 

B. Dismissal Under Rule 12(b)(6) 

 When addressing a Rule 12(b)(6) motion to dismiss, a court must determine whether the 

plaintiff has asserted a legally sufficient claim for relief. Blackburn v. City of Marshall, 42 F.3d 

925, 931 (5th Cir. 1995). A viable complaint must include "enough facts to state a claim to relief 

that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). To meet 

this plausibility standard, a plaintiff must "plead[ ] factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). 

While a court generally accepts well-pleaded facts as true and construes the complaint in 

the light most favorable to the plaintiff, a court is not "bound to accept as true a legal conclusion 

couched as a factual allegation." Twombly, 550 U.S. at 570. A court also does not "accept as true 

conclusory allegations, unwarranted factual inferences, or legal conclusions." Ferrer v. Chevron 

Corp., 484 F.3d 776, 780 (5th Cir. 2007). "Factual allegations must be enough to raise a right to 

relief above the speculative level on the assumption that all the allegations in the complaint are 

true (even if doubtful in fact)." Twombly, 550 U.S. at 555. Thus, "[t]hreadbare recitals of the 

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elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 

570. The Iqbal/Twombly pleading standard applies to direct, indirect, and willful infringement 

allegations. See Chapterhouse, LLC v. Shopify, No. 2:18-cv-00300-JRG, 2018 WL 6981828, at 

*2 (E.D. Tex. Dec. 11, 2018) (dismissing direct infringement allegations for not meeting the 

Iqbal/Twombly pleading standard). 

 1. Properly Pleading Indirect Infringement

 Under 35 U.S.C. §§ 271(b) and (c), a defendant may be found to be an indirect infringer 

if it induces or contributes to the infringement of a third party. To plead induced infringement 

under 35 U.S.C. § 271(b), a complaint must include facts showing that a defendant: (1) had 

actual knowledge of the patent; (2) knowingly induced a third-party to infringe the patent; and 

(3) had specific intent to induce the patent infringement. DSU Med. Corp. v. JMS Co., Ltd., 471 

F.3d 1293, 1305 (Fed. Cir. 2006). To plead contributory infringement under 35 U.S.C. § 271(c), 

a complaint must allege facts plausibly showing that the accused infringer sells within, or 

imports into, the United States a component of a patented apparatus or one for use in practicing a 

patented process and: "1) that there is direct infringement, 2) that the accused infringer had 

knowledge of the patent, 3) that the component has no substantial noninfringing uses, and 4) that 

the component is a material part of the invention." Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 

1326 (Fed. Cir. 2010). 

 Further, a patent cannot be infringed after its term has expired. Kimble v. Marvel Entm’t,

LLC, 576 U.S. 446, 451 (2015) ("And when the patent expires, the patentee’s prerogatives expire 

too, and the right to make or use the article, free from all restriction, passes to the public.") 

Accordingly, for a claim of indirect infringement, the plaintiff must allege facts under which the 

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defendant had the requisite knowledge and intent while a patent could be infringed, i.e., during 

the term of the patent. 

 2. Properly Pleading Willful Infringement

To establish willful infringement, a plaintiff must plausibly allege the "subjective 

willfulness of a patent infringer, intentional or knowing." Halo Elec., Inc. v. Pulse Elec., Inc., 

579 U.S. 93, 105 (2016). A claim for willful patent infringement requires proof that (1) "the 

infringer acted despite an objectively high likelihood that its actions constituted infringement of 

a valid patent," and (2) "this objectively-defined risk (determined by the record developed in the 

infringement proceeding) was either known or so obvious that it should have been known to the 

accused infringer." Script Sec. Sols. L.L.C. v. Amazon.com, Inc., 170 F. Supp. 3d 928, 938 (E.D. 

Tex. 2016). This requires a plaintiff to allege facts plausibly showing that the accused infringer 

acted despite an objectively high likelihood that its actions infringed a valid patent. Mass 

Engineered Design, Inc. v. Ergotron, Inc., 633 F. Supp. 2d 361, 379 (E.D. Tex. 2009). 

 Thus, claims for induced, contributory, and willful infringement each require the plaintiff 

to show that the defendant knew of a specific patent, but also further knew that its acts, or the 

acts of another, constituted infringement of the specific patent. 

V. ARGUMENT

A. VDPP's Complaint Should be Dismissed for Improper Venue 

 Plaintiff has failed to satisfy either prong of §1400(b). VDPP does not and cannot allege 

that Epson resides in Texas for purposes of venue, given that Epson's state of incorporation is 

California. Dec. ¶3. Thus, the first prong of §1400(b) is not in dispute. 

 With respect to the second prong of §1400(b), the Complaint alleges that Epson "has a 

regular and established place of business located at 1101 Summit Ave, Plano, TX 75074," and 

that "Epson has this office location as an Epson Certified Solution Center." Complaint ¶ 2. 

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However, the Complaint fails to establish that the identified Epson Certified Solution Center (the 

"Center") is a regular and established place of business of Epson. In fact, as confirmed by 

Plaintiff's (missing) Exhibit C, as well as Epson's supporting Declaration, the Center is owned 

and operated by a third party dealer, Imaging Spectrum. Dec. ¶6. There are no Epson personnel 

at the Center. Dec. ¶7. All the Epson equipment there is owned by Imaging Spectrum and 

Imaging Spectrum decides what equipment to purchase and how much space to dedicate to 

showing Epson equipment, among other brands. Dec. ¶7. Epson does not own any part of the 

facility. Dec. ¶9. Epson is not on any facility lease nor does Epson pay any rent or hold any 

insurance for the facility. Dec. ¶9. 

Further, VDPP has not alleged any facts to establish an agency relationship between 

Epson and Imaging Spectrum. See In re Volkswagen, 28 F.4th 1203 (Fed. Cir. 2022) (holding 

that independently owned and operated car dealerships are not agents of automobile 

manufactures when their day to day operations are not controlled by the manufactures, and thus 

cannot constitute regular and established places of business of the automobile manufactures for 

venue purposes). In fact, Imaging Spectrum is not an agent of Epson. Dec. ¶¶ 7, 8. Epson has no 

right to direct or control the operations of Imaging Spectrum or the operations at the Center. Dec.

¶8. Imaging Spectrum is an independent dealer that purchases equipment from Epson and then 

markets and sells that equipment though its own facilities and personnel. Dec. ¶¶ 6, 7. Similar to 

the independent car dealerships at issue in In re Volkswagen, Epson has no control over the sales 

once the equipment is purchased from Epson, and there are no "step-by-step" instructions from 

Epson that Imaging Spectrum must follow when selling any Epson products. Dec. ¶ 8.

Accordingly, the Complaint has failed to establish that Epson has a regular and

established place of business in the Eastern District of Texas. Given the relevant facts, VDPP

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cannot establish proper venue in the Eastern District of Texas, and thus the case should be 

dismissed under Rule 12(b)(3). 

B. VDPP Fails to State a Claim for Indirect and Willful Infringement 

 VDPP fails to properly plead its claims of indirect infringement because the Complaint 

includes no plausible facts asserting that Epson knew of the '380 Patent before VDPP filed the 

Complaint, or that the other elements of induced infringement are present. VDPP does not allege 

that Epson had any pre-suit knowledge of the '380 Patent, and only pleads that Epson obtained 

actual knowledge of the asserted patent at the time of filing the complaint. Complaint ¶¶11, 12. 

However, the '380 Patent expired long before the filing of the Complaint. 

The expiration date of a patent is a matter of law. Abbott Labs. v. Novopharm Ltd., 104 

F.3d 1305, 1307-08 (Fed. Cir. 1997). The term of a patent begins on the date on which the patent 

issues and ends 20 years from the date on which the application for the patent was filed in the 

United States or, if the application contains a specific reference to an earlier filed application or 

applications under section 120, 121, 365(c), or 386(c) from the date on which the earliest such 

application was filed. 35 U.S.C. § 154(a)(2). Thus, a patent’s term ends twenty years after the 

filing date of the earliest filed application referenced under 35 U.S.C. § 120 and related statutes. 

 In this case, the '380 patent expired well prior to VDPP's filing of the instant lawsuit. 

Under the provisions of 35 U.S.C. § 154(a)(2), the '380 patent expired on January 22, 2022, 

which is 20 years after the filing date of the earliest filed priority application. The USPTO 

records also confirm that the '380 Patent expired, although the USPTO records indicate that it 

expired due to nonpayment of maintenance fees as of July 10, 2022. See Exhibit C. Regardless, 

in any case, the patent expired well before the June 26, 2023 filing date of the instant complaint. 

Once the patent expires, there is no longer a patent to infringe. Kimble, 576 U.S. at 451. 

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For VDPP's indirect infringement claims to survive a motion to dismiss, the complaint 

must contain facts plausibly showing that Epson knew of the asserted patent before its 

expiration. In re Bill of Lading Transmission & Processing Sys. Pat. Litig., 681 F.3d 1323, 1339 

(Fed. Cir. 2012) ("To survive Appellees' motion to dismiss, therefore, R+L's amended 

complaints must contain facts plausibly showing that Appellees specifically intended their 

customers to infringe the '078 patent and knew that the customer's acts constituted 

infringement.") VDPP does not plead any facts that could plausibly support a claim that Epson 

had knowledge of the '380 Patent before it expired. As a result, VDPP also fails to plead any 

facts plausibly showing that Epson specifically intended its customers to infringe the '380 Patent 

and knew that its customer's acts constituted infringement. Thus, Plaintiff's claims for indirect 

infringement must be dismissed. See, e.g., Logic Devices Inc. v. Apple, Inc., No. C 13-02943 

WHA, 2014 WL 60056, at *2 (N.D. Cal. Jan. 7, 2014) (dismissing a plaintiff’s claims for willful 

and induced infringement because the asserted patent expired before the filing of the complaint). 

Further, to the extent that VDPP's prayer for relief can be construed as an attempt to 

plead willful infringement, the allegation should be dismissed. A claim for willful patent 

infringement requires proof that (1) "the infringer acted despite an objectively high likelihood 

that its actions constituted infringement of a valid patent," and (2) "this objectively-defined risk 

(determined by the record developed in the infringement proceeding) was either known or so 

obvious that it should have been known to the accused infringer." Script Sec. Sols. L.L.C. v. 

Amazon.com, Inc., 170 F. Supp. 3d 928, 938 (E.D. Tex. 2016). VDPP fails to assert that Epson 

even knew of the '380 Patent while it was in force, which necessarily precludes a finding that 

Epson acted when they knew or should have known of an objectively high likelihood that its 

actions constituted infringement of a valid patent. See WBIP, LLC v. Kohler Co., 829 F.3d 1317, 

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1341 (Fed. Cir. 2016) (confirming that knowledge of the patent alleged to be willfully infringed 

continues to be a prerequisite to enhanced damages) (citing Halo, 579 U.S. at 1932-33). 

 Thus, VDPP's indirect infringement and, to the extent pled, willful infringement, claims 

should be dismissed under Fed. R. Civ. P. 12(b)(6). 

C. VDPP Fails to State a Claim for Direct Infringement 

VDPP fails to plausibly plead a cause of action for direct infringement by Epson. The 

only factual support for VDPP's claim of direct infringement is the Claim Chart attached to the 

complaint, which fails to satisfy the basic requirements of the Iqbal/Twombly pleading standard. 

 Under such standard, and as interpreted by this court, "Plaintiff must put Defendant on 

plausible notice of the claims Defendant may need to defend agains[t] by identifying a 

representative claim ... and providing facts sufficient to create a plausible inference that each 

element of the claim is infringed by the accused products. [I]n the post-Form 18 world, a plaintiff 

must include allegations sufficient to permit [the] court to infer that the accused product 

infringed each element of at least one claim." Diem LLC v. BigCommerce, Inc., No. 6:17-CV186 JRG-JDL, 2017 WL 9935521, at *2 (E.D. Tex. May 11, 2017). Further, "cases involving 

more nebulous, less tangible inventions such as computer software methods may require a higher 

degree of specificity to provide proper notice to the defendant." Patent Harbor, LLC v. 

DreamWorks Animation SKG, Inc., No. 6:11-cv-229, 2012 U.S. Dist. LEXIS 114199, at *13 

(E.D. Tex. July 27, 2012). 

The Claim Chart provided by VDPP for this invention is nothing more than screen shots 

of unrelated product features from an Epson product website and user manual, with conclusory 

allegations that simply mirror the claim language. No attempt is made to show how these product 

features are related, let alone that they work together in the specific manner required by claim 6

of the '380 Patent. Claim 6 is an apparatus claim that requires a processor that has a specific 

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functionality, that including the ability to expand, modify, combine and display images. As 

explained in more detail below, the Claim Chart fails to provide facts sufficient to create a 

plausible inference that the identified Epson product includes the functionality required by the 

claim. Rather, VDPP has identified unrelated features of the Epson product and simply restated 

the claim language in conclusory allegations. Compare Uniloc USA, Inc. v. Avaya Inc., No. 

6:15-CV-1168-JRG, 2016 WL 7042236, at *3 (E.D. Tex. May 13, 2016) (a claim for direct 

infringement was satisfactorily pled when it provided descriptive illustrations of products and the 

accused functionality sufficient to support a reasonable inference that defendant is liable for 

direct infringement of the asserted claims).

VDPP only provides general identifications of some features of Epson's projectors 

without identifying how such features could infringe the required functionality of the 

representative claim. For example, asserted claim 6 of the '380 Patent requires that two image 

frames are first expanded to make modified image frames, and those (already expanded) 

modified image frames are combined. VDPP identifies a feature in the Epson product manual 

labeled as "Adjusting Scaled Resolution Images (Super-resolution)" as allegedly corresponding 

to the claim elements that require: "expand the first image frame to generate a modified first 

image frame, wherein the modified first image frame is different from the first image frame" and 

"expand the second image frame to generate a modified second image frame, wherein the 

modified second image frame is different from the second image frame." See Claim Chart at 

Rows 6.3 and 6.4. This feature is described in page 86 of Epson's Home Cinema

5050UB/5050UBe User's Guide. VDPP then attempts to map the feature "combine the modified 

first image frame and the modified second image frame to generate a modified combined image 

Case 2:23-cv-00307-JRG Document 9 Filed 09/01/23 Page 16 of 19 PageID #: 158
17 

frame" to a completely separate "Frame Interpolation" feature described in the User's Guide at 

page 86. See Claim Chart at Row 6.5. 

 VDPP's citations to these two product features lack any explanation of how they are 

related or how they meet the elements of the claim limitations. VDPP provides no factual 

support as to how Epson's alleged "scaling" of images corresponds to the "expanding" of the first 

and second image frames as required by the claim. Further, in alleging that Epson's Frame 

Interpolation corresponds to the claimed feature "combine the modified first image frame and the 

modified second image frame to generate a modified combined image frame," VDPP merely 

alleges " Epson Projector 5050UB combines the modified (scaled) first and second image frame, 

and combines them - generating a modified combined image frame (which are the interpolated 

frames)." This is entirely conclusory in nature and VDPP provides no factual allegations as to 

how Epson's frame interpolation feature amounts to combining any image frames. Importantly, 

the claim limitation requires combining the modified first and second image frames (e.g., those 

that have been expanded), and VDPP provides no factual allegations to support that the image 

frames that are allegedly expanded (scaled) by the Epson Super-resolution product feature are 

then combined by the Epson Frame Interpolation Feature. VDPP's conclusory allegation simply 

repeats the claim language without any factual content to demonstrate how Epson's frame 

interpolation feature meets the claim limitation by combining the scaled images from the Epson 

Super-resolution product feature. Conclusory recitations of claim language, like those included 

for this and each of the claim limitations in the Claim Chart, do not constitute "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; see also Twombly, 550 U.S. at 555 (stating a claim 

"requires more than labels and conclusions"). 

Case 2:23-cv-00307-JRG Document 9 Filed 09/01/23 Page 17 of 19 PageID #: 159
18 

 VDPP makes no attempt to explain how Epson's entirely separate product features for 

Adjusting Scaled Resolution Images and Using Frame Interpolation processes are related, or that 

they together perform the required steps to expand, modify, and combine images frames as 

required by the claim. In fact, the cited Epson User's Guide never suggests combining modified 

(expanded) image frames. Additionally, the frame interpolation feature in the manual at page 81 

is described before the adjusting scaled resolution images, and is never referenced or discussed 

in combination with the feature of Adjusting Scaled Resolution Images is introduced. Nowhere is 

it ever suggested that frame interpolation can occur to any image frames that have undergone 

adjusting scaled resolution adjusting. 

VDPP's threadbare Claim Chart cherry-picks features of Epson's manual without 

sufficiently pleading how, or why, such features are connected as required by the asserted claim. 

The Iqbal/Twombly pleading standard requires more than conclusory statements and must 

provide facts sufficient to create a plausible inference that each element of the claim is infringed 

by the accused products. See Diem LLC at *2. Accordingly, the Complaint fails to state how 

Epson directly infringes claim 6 of the '380 Patent, and its direct infringement claim should be 

dismissed under Fed. R. Civ. P. 12(b)(6). 

VI. CONCLUSION

 Epson respectfully requests that the Court dismiss, with prejudice, Plaintiff's Complaint 

under Fed. R. Civ. P. 12(b)(3) and Fed. R. Civ. P. 12(b)(6). 

 

Case 2:23-cv-00307-JRG Document 9 Filed 09/01/23 Page 18 of 19 PageID #: 160
19 

Date: September 1, 2023 Respectfully submitted,

/s/ Andrew W. Stinson 

Peter T. Ewald (pro hac vice forthcoming) 

Joel M. Gotkin (pro hac vice forthcoming) 

OLIFF PLC

11 Canal Center Plaza

Suite 200 

Alexandria, VA 22314 

703-836-6400 

pewald@oliff.com

jgotkin@oliff.com

Andrew W. Stinson 

State Bar No. 24028013 

RAMEY & FLOCK, PC

100 E. Ferguson Street, Suite 500 

Tyler, TX 75702 

903-597-3301 

andys@rameyflock.com

Attorneys for Defendant

Certificate of Service

I hereby certify that all counsel of record who have consented to electronic service are 

being served with a copy of this document via CM/ECF on September 1, 2023. 

 /s/ Andrew W. Stinson 

 Andrew W. Stinson 

 

Case 2:23-cv-00307-JRG Document 9 Filed 09/01/23 Page 19 of 19 PageID #: 161