Trulia Zillow Suit

Case 2:12-cv-01549-JLR Document 24 Filed 01/25/13 Page 1 of 16
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DEFENDANTS REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS COMPLAINT Case No. 2:12-cv-01549-JLR
The Honorable James L. Robart
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ZILLOW, INC., Plaintiff, vs. TRULIA, INC., Defendant. NOTE ON MOTION CALENDAR: January 25, 2013 ORAL ARGUMENT REQUESTED Case No. 2:12-cv-01549-JLR TRULIA, INC.S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS COMPLAINT FOR PATENT INFRINGEMENT
WILSON SONSINI GOODRICH & ROSATI 701 Fifth Avenue, Suite 5100 Seattle, Washington 98104-7036 Tel: (206) 883-2500 / Fax: (206) 883-2699
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 V. IV. III. B. C. I. II.
TABLE OF CONTENTS Page INTRODUCTION .............................................................................................................. 1 THE 674 PATENT CLAIMS AN UNPATENTABLE ABSTRACT IDEA. .................................................................................................................................. 1 A. The Federal Circuit Has Held Claim Construction Is Not a Necessary Prerequisite for Determining Section 101 Patent Eligibility. ............................................................................................................... 1 Consideration of the 674 Patent as a Whole Confirms it Claims an Unpatentable Abstract Idea. ............................................................................... 3 Both the Machine-or-Transformation and Preemption Tests Demonstrate the 674 Patent is Invalid Under Section 101.................................... 5 1. 2. The 674 patent would preempt any property valuations that consider homeowner input................................................................... 5 The 674 patent fails the machine-or-transformation test........................... 6
ZILLOWS SUGGESTION TO DEFER RESOLUTION OF THIS MOTION AND CONTINUE THE LITIGATION IS INEFFICIENT AND WOULD WASTE JUDICIAL AND PARTY RESOURCES. ................................. 8 ZILLOWS INDIRECT INFRINGEMENT CLAIMS MUST BE DISMISSED FOR FAILURE TO MEET RULE 8S PLEADING REQUIREMENTS.............................................................................................................. 8 A. B. C. Zillow Concedes No Allegations of Knowledge or Intent...................................... 8 There Are No Allegations of Direct Infringement by a Third Party..................... 10 Substantial Noninfringing Use Cannot Be Inferred.............................................. 10
CONCLUSION................................................................................................................. 11
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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 Intl 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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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
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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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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. Zillows 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 Zillows opposition to Trulias 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 assertingon the eve of Trulias IPO and over a year after the accused feature was launcheda patent that is invalid on its face. Trulia also moves to dismiss the claims for indirect infringement for the separate reason that Zillows 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 Necessary Prerequisite 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 courts finding that [t]here is no requirement that claims construction be completed before examining patentability and affirmed
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the trial courts 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 Circuits ruling in Ultramercial and rejected the plaintiffs 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 Courts 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, Zillows proposed constructiona computer
program without the need for human interventiononly 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, Zillows only identified issue of claim construction is not relevant to the crux of Zillows argument that particular display interface saves its claims and, even if the claims were so construed, the construction proposed by Zillow supports Trulias position.1 B. Consideration of the 674 Patent as a Whole Confirms it Claims an Unpatentable 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 Zillows argument is that a particular display interface is required by the claims. It is unsurprising that Zillow focuses here.
1
As noted above, even as Zillow construes it, an
Zillows description of the Federal Circuits 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 judgment and instead affirming summary judgment on 102 and 103 grounds). The Federal Circuit did not examine whether the patent was invalid under Section 101 because the parties appealed the findings of invalidity based only on Sections 102 and 103, since the district court did not decide eligibility. MySpace, 672 F.3d at 1258 (the trial court decided the case under those sections [102 and 103], finding the patents invalid, and that is the judgment now on appeal). The Federal Circuit did address whether it was never appropriate to consider patent eligibility in the initial 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 address legitimate questions of patent eligibility. Id. at 1261. Citing only to the Background section of Trulias opening brief, Zillow argues that Trulia failed to consider the 674 patent as a whole. Dkt. No. 22 at 9. It is true that Trulias 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 the specification. 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, Zillows 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 Zillows 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 patentas a wholeconfirms that the claims are patent ineligible. C. Both the Machine-or-Transformation and Preemption Tests Demonstrate the 674 Patent is Invalid Under Section 101. 1. The 674 patent would preempt any property valuations that consider homeowner 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 plaintiffs 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 Intl v. Alice Corp. Pty. Ltd., 685 F.3d 1341, 1351 (Fed. Cir.
Zillow states that Trulia failed to heed the Supreme Courts holding in Bilski that the machine-ortransformation test was not dispositive and ignored the preemption test. Zillow later admits that Trulias brief acknowledges that the machine-or-transformation test is not the sole test. See Dkt. No. 22 at 10. And Zillow is incorrect 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).
3
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2012)).
Zillows 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 Zillows 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, Zillows attempt to distinguish the 674 patent from other abstract ideas that have been found unpatentable uniformly fails. Zillow argues that the Federal Circuits 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
Zillow 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).
4
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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 Zillows 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.
ZILLOWS SUGGESTION TO DEFER RESOLUTION OF THIS MOTION AND CONTINUE THE LITIGATION IS INEFFICIENT AND WOULD WASTE JUDICIAL AND PARTY RESOURCES. Zillow suggests that if the Court believes the Federal Circuits en banc ruling in CLS
Bank will impact its analysis of the 674 patent, the appropriate course would be to defer a ruling on Trulias 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 Courts 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 Trulias 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. ZILLOWS INDIRECT INFRINGEMENT CLAIMS MUST BE DISMISSED FOR FAILURE TO MEET RULE 8S 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
Zillow 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 out a clear case of hardship or inequity if there is even a fair possibility that the stay will work damage to some one else. Id. at 1112 (citation omitted). Here, Zillow has not shown that it would be damaged by a stay.
5
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complaint itself. Dkt. No. 22 at 21. None of the cited case law supports Zillows 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 Plaintiffs contention that the requisite knowledge can be established by the filing of the Plaintiffs Complaint.).6 Moreover, Zillows argument that allegations of direct competition between the parties are sufficient to establish Trulias 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 defendants 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 defendants 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. / / /
Should the Court find Zillows 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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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 Trulias website also highlights agents, buyers and owners who infringe Zillows patent. Dkt. No. 22 at 22. These
allegations, however, are found only in Zillows opposition brief. Nowhere in the complaint does Zillow allege direct infringement by a third party. Zillows 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. Zillows 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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V.
CONCLUSION For the foregoing reasons, Trulia respectfully requests that the Court dismiss Zillows
Complaint for Patent Infringement with prejudice.
Dated: January 25, 2013 /s/ Stefani E. Shanberg Barry M. Kaplan, WSBA #8661 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 701 Fifth Avenue, Suite 5100 Seattle, Washington 98104-7036 Telephone: (206) 883-2500 Facsimile: (206) 883-2699 Email: bkaplan@wsgr.com Stefani E. Shanberg, Pro Hac Vice Jennifer J. Schmidt, Pro Hac Vice WILSON SONSINI GOODRICH & ROSATI Professional Corporation One Market Plaza Spear Street Tower, Suite 3300 San Francisco, California 94105 Telephone: (415) 947-2000 Facsimile: (415) 947-2099 Email: sshanberg@wsgr.com Attorneys for Defendant TRULIA, INC.
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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.
/s/ Stefani E. Shanberg Stefani E. Shanberg

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The Honorable James L. Robart

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claim to patentable subject matter.

Second, Zillows proposed constructiona computer

As noted above, even as Zillow construes it, an

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Zillows claimed abstract idea impermissibly preempts the concept of allowing a

Case 2:12-cv-01549-JLR Document 24 Filed 01/25/13 Page 11 of 16

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

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

Case 2:12-cv-01549-JLR Document 24 Filed 01/25/13 Page 14 of 16

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

Case 2:12-cv-01549-JLR Document 24 Filed 01/25/13 Page 15 of 16

Complaint for Patent Infringement with prejudice.

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

/s/ Stefani E. Shanberg Stefani E. Shanberg

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