UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

VICTOR MANUEL CELORIO, 

 

 Plaintiff, CASE NO. 1:11-CV-79-SPM/GRJ 

v. Dispositive Motion

GOOGLE, INC., a Delaware corporation, 

registered in Florida, ON DEMAND 

BOOKS, LLC., a Delaware corporation, 

JASON EPSTEIN, New York citizen, 

John Doe 1, John Doe 2 and John Doe 3. 

 Defendant. 

_____________________________/ 

MOTION TO DISMISS AMENDED COMPLAINT 

AND INCORPORATED MEMORANDUM OF LAW

Defendant, GOOGLE INC. (“Google”), by and through its undersigned counsel, 

pursuant to FED. R. CIV. P. 12(b)(6), hereby moves to dismiss Count I and Count II of the 

Amended Complaint of VICTOR MANUEL CELORIO (“Plaintiff”), and in support 

thereof states: 

Summary of Argument & Facts

Count I and Count II of the Amended Complaint (the “Counts”) are vague and 

ambiguous on critical points. For example, although captioned “Contributory 

Infringement Against Google,” as best understood, Count I alleges both direct and 

indirect infringement of U.S. Patent No. 6,012,890 (the “Asserted Patent”), a conspiracy

to commit infringement, and violation of five separate statutory sections, to wit, 35 

U.S.C. §§ 271(a), (b), (c), (f) and (g), (Am. Compl., ¶20), while Count II, entitled “Direct 

Infringement Against Google,” identifies the same five statutory sections as recited in 

Count I, including subsections that concern indirect infringement. Am. Compl., ¶35. 

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Moreover, Count I and Count II are redundant, and non-specific as to the acts alleged to 

constitute infringement. And Count I and II each seem to allege the statutory violations 

with respect to the same eighty-two (82) separate claims of the patent. In its totality, the 

claims against Google seem to be a hodgepodge of theories and allegations which are so 

convoluted that Google cannot reasonably prepare a response. 

 To the extent it is understood by Google, Counts I and II of the Amended 

Complaint fail to state a cause of action under 35 U.S.C. §§ 271(a), (b), (c), (f) or (g) and 

must be dismissed because they allege patent infringement without sufficient factual 

support to satisfy the minimum pleading threshold. The Amended Complaint makes 

mere threadbare recitations of the elements of these causes of action, without the factual 

support required to make the counts plausible. Accordingly, the Amended Complaint 

must be dismissed. 

To the extent the Amended Complaint alleges claims of contributory 

infringement, those claims must be dismissed. The allegations of contributory 

infringement are particularly remarkable in view of Plaintiff’s admission (in the 

Amended Complaint) that the Accused Google E-Books are suitable for substantial 

noninfringing uses—and, only (somehow) lose that condition when “transferred to the 

ODB equipment.” Am. Compl., ¶27. Because the Accused Google E-Books are suitable 

for substantial noninfringing use, Counts I and II—to the extent they allege ‘contributory 

infringement’—must be dismissed. 

Further, to the extent the Amended Complaint alleges infringement at all resulting 

from the use of the Accused Google E-Books (and to the best of Google’s understanding 

of the Amended Complaint, all of the claims against Google do), it must be dismissed. 

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As best understood, Plaintiff alleges that Google infringes the Asserted Patent by 

providing PDF files (containing nothing more than raster images, i.e., photograph-like 

images) of the pages of public domain books (hereinafter, “Accused Google E-Books”) 

to machines that can print those books, such as machines made by Defendant On Demand 

Books, LLC (“ODB”). The very first page of the patent specification (the background of 

the invention), however, explains that the use of raster images to make books on demand 

was known prior to the defendant’s invention. See Amended Complaint, Exhibit A, Col. 

2, ll. 12-17. Because the Google PDFs are raster images of the pages of a book that has 

already been printed, it cannot infringe, or contribute to the infringement of, the Asserted 

Patent. Plaintiff’s mere conclusory statements are insufficient for it to level the serious, 

burdensome, and extremely expensive charges of infringement of the Asserted Patent. 

Accordingly, Counts I and II of the Amended Complaint must be dismissed. 

Argument

I. The Asserted Patent Does Not Cover A Device Or Method Of Printing Books 

From Raster Images Of The Type That Google Provides

The Asserted Patent—entitled ELECTRONIC BOOKSTORE VENDING 

MACHINE—contains fifteen independent claims, and 105 claims that depend upon 

them.1 The fifteen independent claims are directed to five separate types of inventions, 

described by the preamble of the claims themselves:

• A device for printing and binding a book;2

 

• A device for binding a book;3 

• A system for distributing and manufacturing books;4, 5

 

 

1 Plaintiff boldly asserts that Google has infringed (directly and indirectly) every one of 

the fifteen independent claims, and more than sixty dependent claims. 

2 Claims 1, 5 and 6. 

3 Claims 33, 37 and 38. 

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• A method for printing and binding a book;6, 7 and 

• A method for producing and distributing books.8, 9

None of the patent claims are directed to making electronically scanned copies of 

already-printed books available in PDF form. As best understood, however, the plaintiff 

alleges the Asserted Patent claims are infringed by printing the Accused Google E-Books 

on, e.g., ODB’s book printing machine. 

The Accused Google E-Books are PDF files containing only raster images of the 

physical books’ pages—akin to a photograph. Exhibit A, Declaration of Jeff 

Breidenbach, a Member of the Technical Staff at Google, ¶¶ 2-3. Moreover, the Accused 

Google E-Books contain raster images, i.e., photograph-like images, of the pages of 

public domain books (e.g., Grimm’s Fairy Tales (Volume I, 1892) and Albert Einstein’s 

Relativity: The Special and General Theory (1920)). Id. at ¶¶ 4-7. In other words, the 

Accused Google E-Books are a raster image (a copy) of the pages of an already printed 

public domain book. 

The Asserted Patent expressly identifies as prior art (i.e., not as part of the patent) 

a printing method using a raster image of the pages of a book, acquired by copying a 

book that has already been printed. Specifically, the inventor (and pro-se plaintiff) 

wrote: 

the method disclosed in [a prior art patent for making single copies of 

books] ... uses a raster image (a copy) of the pages of a book. This raster 

 

4 Claims 14, 54 and 61. 

5 Although the claim preamble for these claims do not refer to printing or binding, the 

claims affirmatively require printing, clamping and gluing means. 

6 Claims 21, 25 and 26. 

7 Although the claim preamble for these claims do not refer to printing or binding, the 

claims affirmatively require the steps of printing, clamping and applying glue. 

8 Claims 20, 68 and 75. 

9 See FN5. 

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image is acquired by copying a book which has already been printed, for 

example in the traditional way. As is well known, a raster image (bit-map) 

is akin to a photograph. 

Amended Complaint, Exhibit A, Col. 2, ll. 12-17 (emphasis added) The inventor also 

characterized the prior art as concerning “the reproduction of books which have already 

been printed ... .” Amended Complaint, Exhibit A, Col. 2, ll. 43-47 (emphasis added). 

In other words, the inventor himself distinguished what Google now does from his 

invention—admitting that it was in the prior art. 

II. The Amended Complaint Does Not Plead Plausible Claims

The Amended Complaint fails to plead any plausible claims for patent 

infringement against Google, direct or indirect. Counts I and II must be dismissed 

because the counts rely on facts insufficient to plead the existence of direct infringement 

by the Accused Google E-Books, and because they rely on contributory allegations 

directly refuted by the facts as pled. 

A. The Pleading Standard Under Iqbal and Twombly

Plaintiffs must plead sufficient facts that show something “more than a sheer 

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 

1949 (2009). It must plead “factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Id. The “[f]actual 

allegations must be enough to raise a right to relief above the speculative level.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The need at the pleading stage 

for allegations plausibly suggesting (not merely consistent with) agreement reflects the 

threshold requirement of Rule 8(a)(2) that the ‘plain statement’ possess enough heft to 

‘sho[w] that the pleader is entitled to relief.’” Id. at 545. 

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Unlike direct patent infringement, there is no form complaint in the Federal Rules 

of Civil Procedure for indirect infringement (e.g., contributory infringement). Instead, 

when pleading a cause of indirect infringement, a plaintiff must comply with the 

standards in Iqbal and Twombly. See Elan Microelectronics Corp. v. Apple, Inc., 2009 

WL 2972374 (N.D. Cal. Sept. 14, 2009). To satisfy Iqbal and Twombly, a claim of 

indirect infringement must include facts showing how the alleged infringer has, e.g., 

contributed to another party’s direct infringement. Sharafabadi v. University of Idaho, 

2009 U.S. Dist. LEXIS 110904 at *14 (W.D. Wash. Nov. 27, 2009). Moreover, to 

plausibly assert contributory infringement, a complaint must include an allegation that the 

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

designed was both patented and infringing. Mallinckrodt, Inc. v. E-Z-EM, Inc., 2009 U.S. 

Dist. LEXIS 108696 at *12 (D. Del. Nov. 20, 2009). 

In McZeal v. Sprint Nextel Corporation, 501 F.3d 1354 (Fed. Cir. 2007), the 

Federal Circuit allowed a pro se plaintiff to avoid dismissal of direct infringement claim 

made in conformity with Form 16 (now Form 18) of the Federal Rule of Civil Procedure. 

Form 18, however, only provides an example of how direct patent infringement may be 

alleged, the sole patent claim advanced by the McZeal plaintiff. In this case, as in Elan, 

Plaintiff has asserted that Google is indirectly infringing the patent. Indirect infringement 

includes additional elements not addressed in Form 18. Accordingly, as in Elan, the 

Amended Complaint must be dismissed for failure to plead sufficient factual grounds to 

satisfy even the minimum pleading standards required for indirect patent infringement. 

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B. Plaintiff’s Direct Infringement Claims Are Not Plausible On Their Face 

Violation of 35 U.S.C. § 271(a) is known as direct patent infringement.10 As 

such, it is confusing why this subsection is referenced in Count I, which is captioned as 

‘contributory infringement’. Nonetheless, 82 of the 83 claims alleged infringed in 

connection with Count I are also alleged infringed in connection with Count II, which is 

entitled as ‘direct infringement’. However, Count II identifies violations of 35 U.S.C. §§ 

271(a), (b), (c), (f) and (g)—most of which relate to indirect infringement. 

A critical limitation of the Asserted Patent’s independent patent claims 1, 5, 6, 14, 

20, 54, 61, 68 and 75 requires “a formatting means ...” for formatting a book’s contents. 

See Am. Compl., Exhibit A (Columns 12-21 of the Asserted Patent).11 Similarly, 

independent patent claims 21, 25, and 26 require “formatting the book’s content ... .” Id. 

Thus, in order to state a claim upon which relief can be granted for direct infringement of 

such patent claims, Plaintiff must allege that the content of the Accused Google E-Books 

can be formatted. However, such formatting means cannot operate on raster images, such 

as the Accused Google E-Books. 

Attached as Exhibit A, the declaration of Jeff Breidenbach, a Member of the 

Technical Staff at Google, states that Google only supplies the Accused Google E-Books 

 

10 A person without authority who makes, uses, offers to sell or sells the patented 

invention in the U.S., or imports into the United States any patented invention, during the 

term of the patent, is said to be a direct infringer. See 35 U.S.C. § 271(a). 

11 Further, documents outside the four corners of a complaint may be considered by the 

Court on a motion to dismiss under certain circumstances. Horsley v. Feldt, 304 F.3d 

1125, 1135 (11th Cir. 2002); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 

1340 (11th Cir. 2005); see also, Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1281 n. 16 

(11th Cir. 1999); Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002)(party 

may attach documentation to motion to dismiss without converting it into one for 

summary judgment.); Horne v. Potter, 392 Fed. Appx. 800, 802 (11th Cir. 

2010)(unpublished); Reynolds v. Gables Residential Services, Inc., 428 F.Supp.2d 1260, 

1263 (M.D. Fla. 2006). 

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to On Demand Books in a PDF format containing only raster images of the physical 

books’ pages—akin to a photograph. Exhibit A, ¶¶ 2-3. Based on the raster nature of the 

Accused Google E-Books, infringement by Google is not possible. Indeed, the Asserted 

Patent distinguishes the patented invention from the printing of raster image books. 

Specifically, in describing the prior art, the Asserted Patent states: 

the method disclosed in [a prior art patent for making single copies of 

books] ... uses a raster image (a copy) of the pages of a book. This raster 

image is acquired by copying a book which has already been printed, for 

example in the traditional way. As is well known, a raster image (bit-map) 

is akin to a photograph. 

See Amended Complaint, Exhibit A, Col. 2, ll. 12-17 (emphasis added). 

Furthermore, independent patent claims 33, 37 and 38 lack any mention of book 

content, and thus are inapplicable to any Accused Google E-Books, whether sent to an 

ODB machine or otherwise. Plaintiffs fail to state a claim upon which relief can be 

granted for direct infringement of the patent claims.12 Accordingly, direct infringement 

claims based on any of the asserted patent claims must be dismissed. 

Counts I and II also allege that Google violates 35 U.S.C. § 271(g), inter alia, 

which provides, in pertinent part: 

Whoever without authority imports into the United States or offers to sell, 

sells, or uses within the United States a product which is made by a 

process patented in the United States shall be liable as an infringer, if the 

importation, offer to sell, sale, or use of the product occurs during the term 

of such process patent. ... 

 

12 The dependent patent claims, which incorporate all of the limitations of their 

corresponding independent claims, cannot be held to infringe since the independent claim 

is not infringed. See Dahl v. Swift Distributions, Inc., 757 F.Supp.2d 976, 981 (C.D. Cal. 

2010) (“A product that does not infringe an independent claim cannot literally infringe a 

claim that is dependent on that independent claim.”). In other words, because the 

Accused Google E-Books does not contain all the limitations of the independent claims, 

the accused electronic books cannot infringe the dependent patent claims. 

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(emphasis added). Thus, subsection 271(g) makes it unlawful (subject to additional 

statutory limitations) to import or sell a product made by an infringing process. The 

Amended Complaint lacks any allegation that Google either imports or sells any product 

(e.g., a book) made by an infringing process. Therefore, Plaintiff’s claims under § 271(g) 

must be dismissed. 

C. Allegations Of Contributory Infringement Are Not Plausible 

Counts I and II allege that Google infringes the Asserted Patent, among other 

ways, under § 271(c). Title 35 U.S.C. § 271(c), in pertinent part, sets forth the elements 

of contributory patent infringement: 

Whoever offers to sell or sells within the United States ... a material ... 

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 noninfringing use, shall 

be liable as a contributory infringer. 

(emphasis added). As such, a cause of action under § 271(c) requires pleading of nonconclusory factual allegations that show, among other things: (i) the component or 

material is a material part of the invention; (ii) the contributory infringer knew that the 

component or material was especially made or especially adapted for use in an 

infringement; and (iii) the component or material is not a staple article or commodity of 

commerce suitable for substantial noninfringing use. 

As the Supreme Court and Federal Circuit have noted, “[w]hen a charge of 

contributory infringement is predicated entirely on the sale of an article of commerce that 

is used by the purchaser [allegedly] to infringe a patent, the public interest in access to 

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that article of commerce is necessarily implicated.”

13 In circumstances where an 

unpatented component is alleged to be capable of use in infringing a patented method 

claim, and the unpatented component has at least one substantial non-infringing use, the 

sale of the unpatented component will not result in liability for contributory infringement, 

although it could result in liability for inducing infringement if the seller encourages 

buyers to use the product in an infringing fashion. Id. at 675. “Unless a commodity “has 

no use except through practice of the patented method, ... the patentee has no right to 

claim that its distribution constitutes contributory infringement.” Sony Corp., 464 U.S. at 

441 (quoting Dawson Chemical Co. v. Rohm & Hass Co., 448 U. S. 176, 198 (1980)). 

In addition to relying on § 271(c), Plaintiff quotes 35 U.S.C. § 271(f) in Paragraph 

28 of the Amended Complaint. Subsection 271(f) contains several requirements that are 

common to § 271(c) and is generally directed to acts committed within the United States 

that induce or contribute to infringement outside the United States. As with other indirect 

infringements, the pleading is required to plausibly set out the claim. As discussed 

above, mere parroting of the statutory language is insufficient. Accordingly, the claims 

of indirect infringement under § 271(f), as with the claims under § 271(c), must be 

dismissed. 

1. The Amended Complaint Fails to Allege Any Knowledge 

 Of Special Adaptation for Infringement 

Plaintiff’s claims for contributory infringement are defective. In order to allege 

contributory infringement, Plaintiff would not only have to allege the facts supporting his 

 

13 CR Bard, Inc. v. Advanced Cardiovascular Systems, 911 F. 2d 670, 675 (Fed. Cir. 

1990) (quoting Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 440 (1983) 

(finding that home video tape recorders are capable of substantial non-infringing uses 

under the Copyright Act, and thus Sony’s sale of such equipment to the general public 

does not constitute contributory infringement of respondents’ copyrights)).

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three threadbare conclusions, namely, that the Accused Google E-Books (i) is a material 

part of the claimed invention; (ii) is not a staple article of commerce, and (iii) has no 

substantial noninfringing use, but Plaintiff would also have to allege facts supporting the 

statutory requirements that Google knew was especially adapted for infringement. As § 

271(c) requires that the violator knows that the component is “especially made or 

especially adapted” for infringement, Subsection 271(f)(2) also requires that the violator 

knows that the component is so made or adapted. 

Plaintiff has failed to allege any facts showing it plausible that Google knew the 

Accused Google E-Books was especially adapted for infringement. A plaintiff must 

plead in its complaint facts that show plausible grounds for the claim, i.e., facts showing 

something more than a sheer possibility. Although the Amended Complaint parrots the 

statutory language alleging Google knows its Accused Google E-Books are especially 

made or adapted for infringement, the Amended Complaint fails to allege such 

knowledge in a manner sufficient to meet the “plausibly” standard required in Federal 

pleading. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). As Counts I 

and II do not meet this standard, Plaintiff’s indirect infringement claims should be 

dismissed. 

2. The Amended Complaint Itself Refutes the Alleged Lack of 

Substantial Noninfringing Uses 

The Amended Complaint also fails to satisfy the required level of pleading to 

sustain other required elements set forth in §§ 271(c) and (f). To be actionable under 

either subsection, an unpatented component must not be suitable for substantial 

noninfringing uses. Here Google is accused of making available electronically scanned 

books, i.e. the Accused Google E-Books. Plaintiff, however, admits that the Accused 

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Google E-Books are suitable for substantial noninfringing. Count I contends that the 

Accused Google E-Books “looses [sic] its condition” of being a staple article of 

commerce suitable for substantial noninfringing use only when it is transferred to certain 

ODB equipment. Am. Compl., ¶ 27. Taken to its logical conclusion, Plaintiff’s theory 

would also make the paper manufacturer a contributory infringer because the paper being 

used “looses [sic] its condition” of being a staple article of commerce when it goes into 

the ODB equipment. Such a result is at odds with the law. 

Because the unpatented Accused Google E-Books are capable of commercial noninfringing use, the charge of contributory infringement cannot stand. Accordingly, 

Plaintiff’s claims under either 35 U.S.C. §§ 271(c) and 271(f)(2) must be dismissed. 

D. Allegations Of Induced Infringement Are Not Plausible 

“A person induces infringement under § 271(b) by actively and knowingly aiding 

and abetting another’s direct infringement.” CR Bard, Inc. v. Advanced Cardiovascular 

Systems, 911 F. 2d 670, 675 (Fed. Cir. 1990). “[P]roof of actual intent to cause the acts 

which constitute the infringement is a necessary prerequisite to finding active 

inducement.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469 (Fed. 

Cir. 1990). 

While Plaintiff recites the language of the statute, the only factual allegations 

made concerning inducement seem to imply that Google’s process of indexing content in 

the Accused Google E-Books so that users can find it by doing a general search on the 

Internet. See Am. Compl., ¶22. While it is alleged that “[t]his is precisely the process 

that GOOGLE induces to infringe ... via its webpages,” it is not clear as to what acts are 

alleged to constitute inducement. Indeed, it is impossible from the Amended Complaint 

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to determine whether the allegedly infringing act relates to Google’s process of indexing 

induced infringement or Google’s providing general search capabilities.14 As a result, 

induced infringement is insufficiently pled to show something “more than a sheer 

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 

1949 (2009). 

Moreover, the Amended Complaint fails to allege the necessary prerequisite of 

actual intent to cause the acts that constitute the infringement. See Hewlett-Packard Co. 

v. Bausch & Lomb Inc., 909 F.2d 1464, 1469 (Fed. Cir. 1990); see also Mallinckrodt, Inc. 

v. E-Z-EM, Inc., 2009 U.S. Dist. LEXIS 108696 at *11-12 (D. Del. Nov. 20, 2009) (the 

alleged inducer must have specifically intended to induce infringement). It is difficult to 

understand why Plaintiff would fail to allege actual intent unless he lacked any factual 

basis to make that allegation. A plaintiff must plead in its Complaint facts that show 

plausible grounds for the claim, i.e., facts showing something more than a sheer 

possibility. Counts I and II do not meet this standard for the inducement to infringe 

claims, and thus the Counts should be dismissed as such claims. 

 

14 Notably, there is nothing in the patent claims about either of these activities. 

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CONCLUSION

For the foregoing reasons, Google respectfully requests an Order dismissing 

Plaintiff’s Amended Complaint, and granting such other and further relief deemed 

necessary. 

Dated: September 6, 2011. 

Respectfully submitted, 

GREENBERG TRAURIG, P.A. 

/s/Stephen J. Leahu 

Adam B. Landa (landaa@gtlaw.com) 

Florida Bar No. 0036016 

Gregory W. Herbert (herbertg@gtlaw.com)

Florida Bar No. 0111510 

Stephen J. Leahu (leahus@gtlaw.com)

Florida Bar No.: 0054037 

450 S. Orange Avenue, Suite 650 

Orlando, Florida 32801-3371 

Telephone: (407) 420-1000 

Facsimile: (407) 841-1295 

 Attorneys for Google, Inc.

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CERTIFICATE OF SERVICE

 I hereby certify that on 6th day of September, 2011, I electronically filed the

foregoing with the Clerk of the Court by using the CM/ECF system. 

I FURTHER CERTIFY that I delivered by U.S. mail the foregoing document 

and the notice of electronic filing to the non-CM/ECF participants: 

Victor Manuel Celorio 

12300 NW 56th Avenue 

Gainesville, Florida 32653 

s/Stephen J. Leahu 

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