trulia zillow suit

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DEFENDANT’S REPLY BRIEF IN SUPPORTOF MOTION TO DISMISS COMPLAINTCase No. 2:12-cv-01549-JLR

WILSON SONSINI GOODRICH & ROSATI

701 Fifth Avenue, Suite 5100Seattle, Washington 98104-7036

Tel: (206) 883-2500 / Fax: (206) 883-2699

The Honorable James L. Robart

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ZILLOW, INC.,

Plaintiff,

vs.

TRULIA, INC.,

Defendant.

Case No. 2:12-cv-01549-JLR

TRULIA, INC.’S REPLY BRIEFIN SUPPORT OF MOTION TODISMISS COMPLAINT FORPATENT INFRINGEMENT

NOTE ON MOTION CALENDAR:January 25, 2013

ORAL ARGUMENT REQUESTED

Case 2:12-cv-01549-JLR Document 24 Filed 01/25/13 of 16

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DEFENDANT’S REPLY BRIEF IN SUPPORTOF MOTION TO DISMISS COMPLAINT – Page iCase No. 2:12-cv-01549-JLR



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TABLE OF CONTENTS

Page

I. INTRODUCTION .............................................................................................................. 1

II. THE ’674 PATENT CLAIMS AN UNPATENTABLE ABSTRACTIDEA. .................................................................................................................................. 1

A. The Federal Circuit Has Held Claim Construction Is Not aNecessary Prerequisite for Determining Section 101 PatentEligibility. ............................................................................................................... 1

B. Consideration of the ’674 Patent as a Whole Confirms it Claimsan Unpatentable Abstract Idea. ............................................................................... 3

C. Both the Machine-or-Transformation and Preemption TestsDemonstrate the ’674 Patent is Invalid Under Section 101.................................... 5

1. The ’674 patent would preempt any property valuationsthat consider homeowner input................................................................... 5

2. The ’674 patent fails the machine-or-transformation test........................... 6

III. ZILLOW’S SUGGESTION TO DEFER RESOLUTION OF THISMOTION AND CONTINUE THE LITIGATION IS INEFFICIENTAND WOULD WASTE JUDICIAL AND PARTY RESOURCES. ................................. 8

IV. ZILLOW’S INDIRECT INFRINGEMENT CLAIMS MUST BEDISMISSED FOR FAILURE TO MEET RULE 8’S PLEADINGREQUIREMENTS.............................................................................................................. 8

A. Zillow Concedes No Allegations of Knowledge or Intent...................................... 8

B. There Are No Allegations of Direct Infringement by a Third Party..................... 10

C. Substantial Noninfringing Use Cannot Be Inferred.............................................. 10

V. CONCLUSION................................................................................................................. 11


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DEFENDANT’S REPLY BRIEF IN SUPPORTOF MOTION TO DISMISS COMPLAINT – Page iiCase No. 2:12-cv-01549-JLR



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TABLE OF AUTHORITIES

Page(s)

CASES

Bancorp Servs. L.L.C. v. Sun Life Assurance Co. of Canada (U.S.),687 F.3d 1266 (Fed. Cir. 2012)........................................................................................... 1, 2, 5

Bancorp Servs., L.L.C. v. Sun Life Assurance Co.,771 F. Supp. 2d 1054 (E.D. Mo. 2011)....................................................................................... 2

Bilski v. Kappos,130 S. Ct. 3218 (2010) ................................................................................................................ 5

Cal. Inst. of Computer Assisted Surgery, Inc. v. Med-Surgical Servs., Inc.,No. C 10-05067 CW, 2011 WL 672709 (N.D. Cal. Feb. 16, 2011) ........................................... 9

CLS Bank Int’l v. Alice Corp. Pty. Ltd.,685 F.3d 1341 (Fed. Cir. 2012)................................................................................................... 6

CyberSource Corp. v. Retail Decisions, Inc.,654 F.3d 1366 (Fed. Cir. 2011)................................................................................................... 7

Dealertrack, Inc. v. Huber,674 F.3d 1315 (Fed. Cir. 2012)............................................................................................... 3, 7

In re Bill of Lading Transmission & Processing Sys. Patent Litig.,681 F.3d 1323 (Fed. Cir. 2012)............................................................................................. 9, 10

In re Meyer,688 F.2d 789 (Fed. Cir. 1982)..................................................................................................... 5

Lockyer v. Mirant Corp.,398 F.3d 1098 (9th Cir. 2005)..................................................................................................... 8

Mallinckrodt Inc. v. E-Z-EM Inc.,670 F. Supp. 2d 349 (D. Del. 2009) ............................................................................................ 9

Medtrica Solutions, LTD v. Cygnus Med., LLC,No. C12-538RSL, 2012 WL 5726799 (W.D. Wash. Nov. 15, 2012) ................................... 9, 10

MySpace, Inc. v. Graphon Corp.,672 F.3d 1250 (Fed. Cir. 2012)........................................................................................... 1, 3, 4

OIP Techs., Inc. v. Amazon.com Inc.,No. C-12-1233 EMC, 2012 WL 3985118 (N.D. Cal. Sept. 11, 2012)................................ 2, 6, 7

Parker v. Flook,437 U.S. 584 (1978) ................................................................................................................... 5

Ultramercial, LLC v. Hulu, LLC,657 F.3d 1323 (Fed. Cir. 2011)................................................................................................... 2


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DEFENDANT’S REPLY BRIEF IN SUPPORTOF MOTION TO DISMISS COMPLAINT – Page iiiCase No. 2:12-cv-01549-JLR



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Vacation Exch., LLC v. Wyndham Exch. & Rentals, Inc.,No. 12-04229 RGK (FFMX) (C.D. Cal. Sept. 18, 2012)............................................................ 2

Weiland Sliding Doors & Windows, Inc. v. Panda Windows & Doors, LLC,No. 10CV677 JLS (MDD), 2012 WL 202664 (S.D. Cal. Jan. 23, 2012) ................................... 9

WildTangent, Inc. v. Ultramercial, LLC,132 S. Ct. 2431 (2012) ................................................................................................................ 2

STATUTES

35 U.S.C.§ 101.....................................................................................................................................1, 2, 5§ 102.............................................................................................................................................3§ 103.............................................................................................................................................3

RULES

Fed. R. Civ. P.Rule 8 ................................................................................................................................ 1, 8, 10


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DEFENDANT’S REPLY BRIEF IN SUPPORTOF MOTION TO DISMISS COMPLAINT – Page 1Case No. 2:12-cv-01549-JLR



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I. INTRODUCTION

The Federal Circuit has explained that “[e]fficiency may dictate applying the coarse filter

of § 101 first to address legitimate questions of patent eligibility.” MySpace, Inc. v. Graphon

Corp., 672 F.3d 1250, 1261 (Fed. Cir. 2012). A finding that the ’674 patent claims patent

ineligible subject-matter is squarely within Federal Circuit precedent and would facilitate the

efficient resolution of this litigation.

Zillow’s complaint should be dismissed because it asserts that a patent puts no

meaningful limitation on the abstract idea of allowing homeowners to enter information about

their homes to better value their homes. As demonstrated by Zillow’s opposition to Trulia’s

motion to dismiss, there are no issues of discovery or claim construction that bear on the issue of

patentable subject matter. Accordingly, to allow this case to proceed would waste judicial and

party resources and reward Zillow for asserting—on the eve of Trulia’s IPO and over a year after

the accused feature was launched—a patent that is invalid on its face.

Trulia also moves to dismiss the claims for indirect infringement for the separate reason

that Zillow’s complaint does not satisfy Rule 8. Zillow essentially admits that the necessary

elements are not pled. Instead, it contends they can be inferred, a position unsupported by the

case law. Trulia respectfully requests that the Court dismiss the complaint on this basis as well.

II. THE ’674 PATENT CLAIMS AN UNPATENTABLE ABSTRACT IDEA.

A. The Federal Circuit Has Held Claim Construction Is Not a NecessaryPrerequisite for Determining Section 101 Patent Eligibility.

Zillow first argues that the Court should wait to consider whether the ’674 patent claims

patentable subject matter under Section 101 until after claim construction. But the cases Zillow

cites are cases in which the Federal Circuit has confirmed that claim construction is not a

necessary prerequisite to determining patent eligibility.

In Bancorp Servs. L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), 687 F.3d 1266

(Fed. Cir. 2012), the Federal Circuit affirmed the district court’s finding that “[t]here is no

requirement that claims construction be completed before examining patentability” and affirmed


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the trial court’s finding that the patent was invalid under Section 101. Id. at 1273 (quoting

Bancorp Servs., L.L.C. v. Sun Life Assurance Co., 771 F. Supp. 2d 1054, 1059 (E.D. Mo. 2011);

see also Dkt. No. 19 at 5, 8, 10, 11. The Federal Circuit also reaffirmed its prior decision in

Ultramercial, LLC v. Hulu, LLC, in which it stated that “[t]his court has never set forth a bright

line rule requiring district courts to construe claims before determining subject matter

eligibility.” 657 F.3d 1323, 1325 (Fed. Cir. 2011), vacated sub nom. WildTangent, Inc. v.

Ultramercial, LLC, 132 S. Ct. 2431 (2012).

Zillow also ignores that district courts in this circuit have followed Federal Circuit

precedent and granted motions to dismiss for invalidity under Section 101 prior to claim

construction. For example, in OIP Techs., Inc. v. Amazon.com Inc., No. C-12-1233 EMC, 2012

WL 3985118, at *5 (N.D. Cal. Sept. 11, 2012), the Court considered the Federal Circuit’s ruling

in Ultramercial and rejected the plaintiff’s argument that it would be premature to consider

eligibility prior to claim construction because that plaintiff “fail[ed] to explain how claims

construction would materially impact the § 101 analysis.” OIP Techs., 2012 WL 3985118, at *5

(granting motion to dismiss based on Section 101). Similarly, in Vacation Exch., LLC v.

Wyndham Exch. & Rentals, Inc., No. 12-04229 RGK (FFMX) (C.D. Cal. Sept. 18, 2012), the

Court held that “where claim construction is not required for a full understanding of the basic

character of the claimed subject matter, a district court may resolve patentable subject matter

eligibility on a motion to dismiss.” Dkt. No. 19, Exh. 1 at 2-3. The Court granted the motion to

dismiss, finding “claim construction would not clarify the Court’s understanding of the claimed

subject matter,” since the “relevant terms are clear, and Plaintiff failed to show any construction

that would dictate a different analysis regarding patentable subject matter.” Id. at 3.

Like the plaintiffs in OIP and Vacation Exchange, Zillow has failed to demonstrate that

claim construction would impact the Section 101 analysis. The sole claim construction raised by

Zillow is that of “automatic valuation” which Zillow defines as “a valuation generated by a

computer program without the need for human intervention.” Dkt. No. 22 at 6. First, “automatic

valuation” has nothing to do with the “particular display interface” that Zillow emphasizes as its


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claim to patentable subject matter. Second, Zillow’s proposed construction—“a computer

program without the need for human intervention”—only makes matters worse for Zillow, as it

confirms the invention relates to nothing more than “a general computer” which the Federal

Circuit has repeatedly rejected as overcoming an abstract idea. See Dkt. No. 19 at 7. In sum,

Zillow’s only identified issue of claim construction is not relevant to the crux of Zillow’s

argument that “particular display interface” saves its claims and, even if the claims were so

construed, the construction proposed by Zillow supports Trulia’s position.1

B. Consideration of the ’674 Patent as a Whole Confirms it Claims anUnpatentable Abstract Idea.

Next, Zillow argues that, as a whole,2 “[t]he programmed computer, display, and refined

automatic valuation” distinguish the ’674 patent from an abstract idea. Dkt. No. 22 at 11.

Zillow provides a telling illustration: “[i]f a real estate agent were to solicit information from

homeowners of a property, and then use that information to refine his estimate of the value of the

home, he would not violate the ’674 Patent, even if he calculated the refined valuation on a

general purpose computer, unless he used the particular display interface described by the

patent.” Id. (underline in original, bold and italics added). This illustration confirms that the

crux of Zillow’s argument is that a “particular display interface” is required by the claims. It is

unsurprising that Zillow focuses here. As noted above, even as Zillow construes it, an

1Zillow’s description of the Federal Circuit’s holding in MySpace is misleading. See Dkt. No. 22 at 6-7

(characterizing the case as “refusing to reach § 101 issue even following claim construction and summary judgmentand instead affirming summary judgment on § 102 and § 103 grounds”). The Federal Circuit did not examinewhether the patent was invalid under Section 101 because the parties appealed the findings of invalidity based onlyon Sections 102 and 103, since the district court did not decide eligibility. MySpace, 672 F.3d at 1258 (“the trialcourt decided the case under those sections [102 and 103], finding the patents invalid, and that is the judgment nowon appeal”). The Federal Circuit did address whether it was never appropriate to consider patent eligibility in theinitial stage of litigation: “Does this mean that § 101 can never be raised initially in a patent infringement suit? No.For one, in certain technologies fields … efficiency may dictate applying the coarse filter of § 101 first to addresslegitimate questions of patent eligibility.” Id. at 1261.

2Citing only to the “Background” section of Trulia’s opening brief, Zillow argues that Trulia failed to consider

the ’674 patent as a whole. Dkt. No. 22 at 9. It is true that Trulia’s analysis of the ’674 patent focuses on the claims.See Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1334 (Fed. Cir. 2012) (“In considering patent eligibility under § 101,one must focus on the claims.”). But it certainly does not stop there and includes ample discussion of thespecification. See Dkt. No. 19, passim.


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“automatic valuation” is done by nothing more than a general purpose computer and cannot

render the claims patentable. Likewise, Zillow’s alleged “programmed computer” cannot render

the claims patentable. Dkt. No. 19 at 6-8. That leaves the allegedly required “particular display

interface.”

The ’674 patent, as a whole, unquestionably demonstrates that a “particular display

interface” is actually not required by the claims nor central to the claimed invention. As a

threshold matter, none of the forty patent claims includes the term “interface.” Next,

independent claim 15 does not even recite a “display”; it merely requires a method in a

“computing system” that includes the step of “presenting the refined valuation of the

distinguished home.” ’674 patent, claim 15. Likewise, independent claim 2 recites only “a

computing system” to perform the steps of “displaying at least a portion of information about the

distinguished property used in the automatic valuation of the distinguished property,” and

“displaying to the owner a refined valuation of the distinguished property that is based on the

adjustment of the obtained user input.” Id., claim 2. Even claim 1 (the only other independent

claim), which merely specifies more information that is displayed, does not limit the claims to

any “particular display interface” beyond a general “computing system” that is capable of

“presenting a display.” Id., claim 1. In sum, the ’674 patent claims recite nothing more than the

general function of displaying information, which the Federal Circuit has noted is one that any

general purpose computer routinely performs. See MySpace, 672 F.3d at 1267 (dissent).

The ’674 specification confirms that Zillow’s new emphasis on a “particular display

interface” is litigation-driven. The term “interface” appears only twice in the entire patent, and

both times confirms that no “particular display interface” is required. The specification states,

“[i]n various embodiments, the facility can be accessed by any suitable user interface.” ’674

patent at 4:39-41 (emphasis added). This statement is made in the description of Figure 1, which

is a “block diagram showing some of the components typically incorporated in at least some of

the computer systems and other devices on which the facility executes.” Id. at 4:25-27. Figure 1

does not include any display at all. Although other figures illustrate displays that can “typically”


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be used, the specification reiterates that no “particular display interface” is required: “the facility

may use a variety of user interfaces to collect various information usable in determining

valuations from users and other people knowledgeable about homes.” Id. at 19:20-22 (emphasis

added). Thus, the ’674 patent—as a whole—confirms that the claims are patent ineligible.

C. Both the Machine-or-Transformation and Preemption Tests Demonstratethe ’674 Patent is Invalid Under Section 101.

1. The ’674 patent would preempt any property valuations that considerhomeowner input.

According to Zillow, there is no preemption3 because the ’674 patent “applies expressly

to the narrow field of electronic real estate commerce … to solve a concrete problem in that

field: incorporating home owner input to generate and display a revised valuation.” Dkt. No. 22

at 17. The Supreme Court and Federal Circuit have both rejected the argument that a narrow

field or post-solution components can turn an abstract idea into patentable subject matter. In

Parker v. Flook, 437 U.S. 584 (1978), the Supreme Court established that limiting an abstract

idea to one field of use or adding token post-solution components did not make the concept

patentable. The Supreme Court again held in Bilski v. Kappos, 130 S. Ct. 3218, 3231 (2010),

that limiting an abstract idea to a specific field does not render it patentable. The Federal Circuit

and district courts have followed suit. See, e.g., Bancorp, 687 F.3d at 1280 (rejecting plaintiff’s

assertions that claims limited to life insurance market are not abstract); Dkt. No. 19, Exh. 1 at 5

(“the fact that claim 1 was limited to the field of timeshare trading does not help it avoid

preemption, nor does its incorporation of token ‘postsolution’ components, such as a computer or

database.”). Moreover, “a claim to nothing more than performing an abstract idea on a computer

could preempt innovation by precluding all uses of the inventive idea and, therefore, is not patent

eligible.” Id. (citing CLS Bank Int’l v. Alice Corp. Pty. Ltd., 685 F.3d 1341, 1351 (Fed. Cir.

3Zillow states that Trulia failed to heed the Supreme Court’s holding in Bilski that the machine-or-

transformation test was not dispositive and ignored the preemption test. Zillow later admits that Trulia’s briefacknowledges that the machine-or-transformation test is not the “sole” test. See Dkt. No. 22 at 10. And Zillow isincorrect that Trulia ignored the preemption test. See, e.g., Dkt. No. 19 at 7-10 (“That the method claimed in the’674 patent is limited to the real estate market makes no difference.”); In re Meyer, 688 F.2d 789, 796 n.4 (Fed. Cir.1982) (discussing the numerous ways to analyze preemption).


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2012)). Zillow’s claimed abstract idea impermissibly preempts the concept of allowing a

homeowner to provide input that is used in a valuation of the property and is not patent eligible.

2. The ’674 patent fails the machine-or-transformation test.

The machine-or-transformation test further demonstrates that the ’674 claims are not

patent eligible.4 Zillow again focuses on “a particular computer program and display interface

that can perform a series of steps” to argue that the claimed invention has a “meaningful limit.”

Dkt. No. 22 at 11. As discussed above, the claims do not actually require any “particular display

interface,” nor do they limit the patent to a specifically programmed computer. See supra, § I.B.

To the contrary, the ’674 claims recite only a general “computing system” insufficient to satisfy

the machine-or-transformation test. See OIP Techs., 2012 WL 3985118, at *13 (“merely

identifying general ‘machine elements’ does not satisfy the [test]; were that so virtually any use

of devices beyond the human body for a claimed method would satisfy the test.”).

Zillow further argues that “the display interface is not post-solution activity.” Dkt. No.

22 at 13. But a post-solution activity is exactly what Zillow’s purported “display interface” is.

Allowing a user to provide input is the idea, and the obvious post-solution activity is to use a

display interface in a general computing system to facilitate the claimed idea. Claim 15 provides

a good illustration, as it contains no limitations on any display incorporating user input and

instead recites only the step of “presenting the refined valuation of the distinguished home.”

’674 patent, claim 15.

Finally, Zillow’s attempt to distinguish the ’674 patent from other abstract ideas that have

been found unpatentable uniformly fails. Zillow argues that the Federal Circuit’s finding that the

patent in Dealertrack was invalid under Section 101 does not apply because the ’674 patent

recites “concrete steps requiring a computer display and interface to accept the user input to

generate the revised valuation,” but fails to cite anything in the patent as support. Further, in

Dealertrack, the claims at issue were similar to those in the ’674 patent, including: “receiving

4Zillow does not argue that the ’674 patent meets the “transformation” prong of the machine-or-transformation

test. See Dkt. No. 19 at § III.B.3.b (discussion of how transformation prong is not satisfied).


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credit application data from a remote application entry and display device.” Dealertrack, 674

F.3d at 1331. Although that patent actually claimed a “display device,” the Federal Circuit found

the claims did not require “a specific application, nor are they tied to a particular machine.” Id.

at 1333-34. Where, as here, the ’674 claims do not even require a particular display device, the

patent should certainly be found unpatentable under this standard.

To distinguish CyberSource, Zillow states that the ’674 patent “includes detailed

descriptions of techniques for using the obtained user inputs to refine home valuations in the

dependent claims.” Dkt. No. 22 at 14. Even if this were true, it has no bearing on the incidental

use of a computer and display in the ’674 patent. Instead, for example, claim 9 of the ’674 patent

relates to the information considered in calculating a valuation, which is not patentable. Claim 9

is similar to the claimed step in CyberSource of “obtaining information about other transactions

that have utilized an Internet address that is identified with the [] credit card transaction.” The

Federal Circuit found the “mere collection and organization of data” insufficient and that, like

the ’674 patent, the claims do not require the method be performed by a particular machine, or

any machine at all. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir.

2011). Moreover, the ’674 claims are not limited to any particular algorithms or calculations;

rather, the broad scope can extend to essentially any property valuation that considers input from

a homeowner. See id. at 1372.

Finally, Zillow attempts to distinguish OIP Techs. in which the Court found that merely

adding a machine-readable medium as the location for storing gathered data does not impose any

meaningful limitation on the claim. 2012 WL 3985118, at *14. That holding should apply

equally to the gathering of data from the homeowner, which is essentially what is claimed in the

’674 patent. By Zillow’s own admissions, the purported “particular display interface” is only

used to gather data from the user and to deliver the results of the valuation. Notwithstanding the

fact that it is not claimed in the patent, this “interface” is merely incidental to the step of

gathering data, which is not patentable.

/ / /


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III. ZILLOW’S SUGGESTION TO DEFER RESOLUTION OF THIS MOTIONAND CONTINUE THE LITIGATION IS INEFFICIENT AND WOULDWASTE JUDICIAL AND PARTY RESOURCES.

Zillow suggests that if the Court believes the Federal Circuit’s en banc ruling in CLS

Bank will impact its analysis of the ’674 patent, the appropriate course would be to defer a ruling

on Trulia’s motion to dismiss but not stay the case. Presumably Zillow intends to pursue

discovery and move forward with the litigation even though the pleading stage has not closed.

Should the Court’s ruling on the motion to dismiss be postponed and the case nevertheless

continue, Trulia would be burdened by having to engage in discovery, expend resources, and

incur substantial litigation fees litigating a patent that is invalid.5

In contrast, consideration of Trulia’s motion to dismiss could efficiently resolve the

litigation altogether. Although Zillow contends that a stay would “exacerbate” its injuries

because it has sought injunctive relief, it fails to explain why this is so, particularly in view of the

fact that Zillow waited over a year after Trulia launched the accused feature to file its lawsuit.

Dkt. No. 1 at 3, 5, 7. Accordingly, although Trulia maintains that the Court should rule on its

motion irrespective of the outcome of CLS Bank (which Zillow agrees should have no impact), if

the Court is inclined to wait, Trulia respectfully submits that the case should be stayed.

IV. ZILLOW’S INDIRECT INFRINGEMENT CLAIMS MUST BE DISMISSEDFOR FAILURE TO MEET RULE 8’S PLEADING REQUIREMENTS.

Zillow essentially admits that the complaint fails to allege all the necessary elements for

pleading contributory and induced infringement. Zillow then boldly asserts that the Court may

infer the factual allegations necessary to support these claims.

A. Zillow Concedes No Allegations of Knowledge or Intent.

Implicitly conceding that the complaint lacks any allegation of knowledge or intent,

Zillow instead argues that post-filing knowledge of the patent is satisfied by the filing of the

5Zillow cites to Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005), to argue that defending a suit in and of

itself does not constitute a hardship. In Lockyer, the Court clarified that the party seeking a stay need only make outa clear case of hardship or inequity “if there is even a fair possibility that the stay … will work damage to some oneelse.” Id. at 1112 (citation omitted). Here, Zillow has not shown that it would be damaged by a stay.


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complaint itself. Dkt. No. 22 at 21. None of the cited case law supports Zillow’s position. In

both Symantec and In re Bill of Lading, the courts found that knowledge of the patent was

adequately pled where amended complaints included allegations that the alleged infringer had

knowledge of the patents based on the filing of original complaints. See In re Bill of Lading

Transmission & Processing Sys. Patent Litig., 681 F.3d 1323, 1336 (Fed. Cir. 2012). That is not

the case here, where the complaint at issue is silent as to any knowledge of the ’674 patent.

Other courts have rejected arguments that the original complaint can itself establish knowledge.

See Mallinckrodt Inc. v. E-Z-EM Inc., 670 F. Supp. 2d 349, 354 n.1 (D. Del. 2009) (“The Court

is not persuaded by Plaintiff’s contention that the requisite knowledge can be established by the

filing of the Plaintiff’s Complaint.”).6

Moreover, Zillow’s argument that allegations of direct competition between the parties

are sufficient to establish Trulia’s knowledge of the ’674 patent is unavailing. In Weiland

Sliding Doors & Windows, Inc. v. Panda Windows & Doors, LLC, these allegations were only

one of many factors that the Court found satisfied the pleading requirements, as the complaint

also included allegations that plaintiff marked its products with the patents and that plaintiff sent

a letter to defendants enclosing the asserted patent. No. 10CV677 JLS (MDD), 2012 WL

202664, at *4 (S.D. Cal. Jan. 23, 2012). Likewise in Cal. Inst. of Computer Assisted Surgery,

Inc. v. Med-Surgical Servs., Inc., the complaint included allegations regarding the defendant’s

website, which allegedly listed the patents at issue. No. C 10-05067 CW, 2011 WL 672709, at

*5 (N.D. Cal. Feb. 16, 2011). And in Medtrica Solutions, LTD v. Cygnus Med., LLC, plaintiff

alleged that the defendant’s website included instructions for how to use the allegedly infringing

product. No. C12-538RSL, 2012 WL 5726799, at *2 (W.D. Wash. Nov. 15, 2012). No such

allegations are present here.

/ / /

6Should the Court find Zillow’s argument persuasive, Trulia submits that any inferences should be limited to

post-litigation knowledge of the ’674 patent, as the Court found in Symantec.


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Tel: (206) 883-2500 / Fax: (206) 883-2699

B. There Are No Allegations of Direct Infringement by a Third Party.

Zillow also essentially admits that the complaint lacks allegations of infringement by a

third party, but rather argues that the complaint “alleges that Trulia’s website also highlights

‘agents, buyers and owners’ who infringe Zillow’s patent.” Dkt. No. 22 at 22. These

allegations, however, are found only in Zillow’s opposition brief. Nowhere in the complaint

does Zillow allege direct infringement by a third party. Zillow’s reliance on In re Bill of Lading,

which held only that a complaint need not identify the specific third party infringer, does not

save its defective pleading which contains no allegations of third party infringement. In re Bill

of Lading, 681 F.3d 1323 at 1336.

C. Substantial Noninfringing Use Cannot Be Inferred.

Zillow also implicitly admits that the complaint fails to allege no substantial

noninfringing use, which is necessary to support a claim of contributory infringement. It argues

that this element can be inferred from other factual allegations. This district has held otherwise.

In Medtrica Solutions Ltd., Judge Lasnik held that “the Court cannot, in the complete absence of

allegations, infer that the [accused product] is a component of a patented invention, or that the

component has no substantial noninfringing use.” 2012 WL 5726799, at *2.

Zillow’s complaint does not plead all the necessary elements to support induced or

contributory infringement. Trulia, therefore, requests that the Court dismiss these claims for the

additional reason that they fail to satisfy the pleading requirements of Rule 8.

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Tel: (206) 883-2500 / Fax: (206) 883-2699

V. CONCLUSION

For the foregoing reasons, Trulia respectfully requests that the Court dismiss Zillow’s

Complaint for Patent Infringement with prejudice.

Dated: January 25, 2013

Barry M. Kaplan, WSBA #8661WILSON SONSINI GOODRICH & ROSATIProfessional Corporation701 Fifth Avenue, Suite 5100Seattle, Washington 98104-7036Telephone: (206) 883-2500Facsimile: (206) 883-2699Email: [email protected]

Stefani E. Shanberg, Pro Hac ViceJennifer J. Schmidt, Pro Hac ViceWILSON SONSINI GOODRICH & ROSATIProfessional CorporationOne Market PlazaSpear Street Tower, Suite 3300San Francisco, California 94105Telephone: (415) 947-2000Facsimile: (415) 947-2099Email: [email protected]

Attorneys for DefendantTRULIA, INC.

/s/ Stefani E. Shanberg


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CERTIFICATE OF SERVICE

I hereby certify that on January 25, 2013, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system, which will send notification to counsel of record.

Stefani E. Shanberg/s/ Stefani E. Shanberg


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