The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
eee eee eee eee KX
SHOLEM WEISNER, :
Plaintiff, ORDER
~against- 20 Civ, 2862 (AKH)
GOOGLE LLC and SHMUEL NEMANOV. :
Defendant and Involuntary Party.
ALVIN K. HELLERSTEIN, U.S.D.J.:
The above-captioned patent infringement case is before me on remand in part
from the Federal Circuit. On January 4, 2021, I granted Defendant Google’s motion to dismiss
the First Amended Complaint (“FAC”), noting that Plaintiff failed to describe with particularity
Google’s allegedly infringing features, and that Plaintiff failed to compare those features to the
patent claims Google allegedly infringed. See ECF No. 68. Plaintiff filed a Second Amended
Complaint (“SAC”), which Google again moved to dismiss (1) for failure to plead a plausible
claim for infringement and (2) for claiming patent ineligible subject matter. On July 28, 2022, I
issued an Order dismissing the SAC based solely on the second ground. ECF No. 102. On
appeal, the Federal Circuit remanded as to two of the four patents at issue. ECF No. 107.
On December 5, 2022, Google renewed its motion to dismiss the SAC for failure
to plead a plausible claim for infringement. I find that the Second Amended Complaint (ECF No.
72) cured the deficiencies of the First Amended Complaint by providing claims charts (ECF Nos.
72-3, 72-4) describing with particularity the Google features which infringe on Plaintiff's patent
claims. I therefore find that the Second Amended Complaint “state[s] a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and that Plaintiff
has “plead[ed] 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)
(citing Twombly, 550 U.S. at 556). Plaintiff has thereby “give[n] the defendant fair notice of
what the... claim is and the ground upon which it rests.” Twombly, 550 U.S. at 545.
Accordingly, I find that Plaintiff has plausibly alleged patent infringement with regard to the
‘905 and ‘911 patents. The Clerk of Court shall terminate the open motion (ECF No. 119).
The schedule provided by my Order of November 22, 2022 (ECF No. 110) is
cancelled. The following is the procedure to be followed.
1. Defendants shall file an Answer no later than December 22, 2022.
2. No later than January 13, 2023, the parties shall meet and prepare a four-
column table. At the meeting, the parties shall populate the first column
with all phrases in either the ‘905 or the ‘911 patent requiring construction
in the opinion of any of the parties.
3. No later than February 3, 2023, Plaintiff shall populate the second column
of the table with Plaintiff's proposed construction of all phrases and
produce the table to Defendants.
4, No later than February 24, 2023, Defendants shall populate the third
column of the table with Defendants’ proposed construction. If the
Defendants differ, the defendants may propose particular versions.
5. No later than February 27, 2023. the Parties shall jointly file the table,
leaving a blank column for the Court’s rulings.
6. A Markman Hearing (Markman v. Westview Instr., Inc. 517 U.S. 370
(1998)) will be held on March 10, 2023 at 10:30 p.m., before any discovery
takes place. The Court will then decide the proper construction of each
phrase and, after that, discuss the discovery program for the parties, or set a
date for such discussions. Until the Claims construction order, there will be
no discovery. The parties will agree to a schedule that will allow them to
complete the table timely, and submit the same to be approved by the
Court.
SO ORDERED.
Dated: Decembel 7022 hk f=
New York, New York VIN K. HELLERSTEIN
nited States District Judge