# Weisner v. Google LLC

> District Court, S.D. New York · January 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10328683

## Case

- **Court:** District Court, S.D. New York
- **Decided:** January 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------- x
SHOLEM WEISNER and SHMUEL NEMANOV, :
:
Plaintiff and Involuntary Plaintiff, : ORDER GRANTING IN PART
: MOTION TO DISMISS
-against-
: WITHOUT PREJUDICE
:
: 20 Civ. 2862 (AKH)
GOOGLE LLC. :
:
Defendant.
--------------------------------------------------------------- x

ALVIN K. HELLERSTEIN, U.S.D.J.:
The following order treats plaintiff’s claims that Google infringed. Plaintiff’s claims are
conclusory and insufficient and are dismissed with leave to replead. The argument tomorrow
afternoon will be limited to Google’s motion to dismiss on grounds of invalidity.
In order to state a claim for patent infringement, the Complaint must “plausibly allege
that the accused product practices each of the limitations found in at least one asserted
claim.” e.Digital Corp. v. iBaby Labs, Inc., 2016 WL 4427209, at *3 (N.D. Cal. Aug. 22, 2016).
Courts require “some level of specificity” beyond recitation of a patent infringement claim's
elements. Wistron Corp v. Phillip M. Adams & Associates, LLC, No. CV–10–4458–EMC, 2011
WL 4079231, at *4 (N.D.Cal. Sept. 12, 2011). The Plaintiff must allege facts showing why it is
plausible that the Defendant’s products infringe on a claim. DIFF Scale Operation Research,
LLC v. MaxLinear, Inc., 2020 WL 2220031, at *2 (D. Del. May 7, 2020); see also Nalco
Company v. Chem-Mod, LLC, 883 F.3d 1337, 1354 (Fed. Cir. 2018) (claim for infringement
sufficiently pled where complaint contained allegations as to what aspect of the accused process
it believed was equivalent to the claim method step). Paraphrasing claim limitations and making
conclusory allegations that Defendant’s product infringes the patent are insufficient to survive a
motion to dismiss. DIFF Scale Operation Research, LLC, 2020 WL 2220031, at *2; see also
Apollo Fin., LLC v. Cisco Sys., Inc., 190 F. Supp. 3d 939, 943 (C.D. Cal. 2016) (Plaintiff does
not state a plausible claim for patent infringement by simply identifying the allegedly infringing
products and reciting the elements of a patent infringement claim in a conclusory fashion, absent

any factual support.)
Here, the amended complaint contains insufficient factual allegations regarding
Defendant’s products and how they relate to the Plaintiff’s claims. The complaint names certain
Google features within Google Maps, and states that the features infringe, but doesn’t provide
material factual details. See Am. Compl. ¶ 84. It does not describe the Google Map features in
particularity that are claimed to infringe, nor does it compare those features to the features of the

claims that are alleged to have been infringed. See Nalco Company v. Chem-Mod, LLC, 883 F.3d
at 1354. Plaintiff’s allegations of infringement are conclusory and insufficient.
Additionally, Plaintiff has not shown, whatever the infringement, that Google is the
infringer. A number of actors are alleged to have been guilty of infringement, but there is no
plausible, definite allegation that Google “control[led] the system and obtain[ed] benefit from it,”
Nor have all the infringed claim elements been sufficiently alleged. Centillion Data Sys., LLC v.

Qwest Commc’ns. Int’l, Inc., 631 F.3d 1279, 1286, 1288 (Fed. Cir. 2011). To satisfy the
Twombly pleading standard for joint infringement in the case of multiple actors, the Plaintiff
must plead “facts sufficient to allow a reasonable inference that all steps of the claimed method
are performed and either (1) one party exercises the requisite ‘direction and control’ over the
other’s performance or (2) the actors form a joint enterprise such that performance of every step
is attributable to the controlling party.” Lyda v. CBS Corp., 838 F.3d 1331, 1338-39 (Fed. Cir.
2016) (citing Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020, 1022 (Fed. Cir.
2015)). Plaintiff’s claims require multiple actors to perform the claim method steps, such as the
users, the vendors, and some sort of GPS provider. Plaintiff alleges that “all the steps of [the
claims] are performed by either Google, its customers, purchasers, users, and developers, or
some combination thereof, see Am. Compl. ¶ 103, but that hardly is sufficient.

Because the complaint does not sufficiently allege direct infringement, plaintiff’s claims
for indirect infringement cannot be sustained. See In re Bill of Lading, 681 F.3d 1323, 1336 (Fed.
Cir. 2012) (To support a claim for indirect infringement, a plaintiff needs to plead “facts
sufficient to allow an inference that at least one direct infringer exists.”). In conclusion, all
plaintiff’s claims of infringement are hereby dismissed, with leave to replead within 20 days.

SO ORDERED.
Dated: January 4, 2021 __________/s/ Alvin K. Hellerstein___________
New York, New York ALVIN K. HELLERSTEIN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10328683. Public record. Not legal advice.