Viavi Solutions Inc. v. Platinum Optics Technology Inc.

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION — 7 — 8 VIAVI SOLUTIONS INC., Case No. 5:21-cv-06655-EJD 9 Plaintiff, ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 10 v. 11 PLATINUM OPTICS TECHNOLOGY Re: ECF No. 89 INC., — 12 — Defendant. — 13 — Before the Court is Defendant’s motion for summary judgment. ECF No. 89. The Court — 14 — heard oral argument on December 15, 2022. For the reasons discussed herein, the Court — 15 — GRANTS Defendant’s motion. — 16 — I. BACKGROUND — 17 — Plaintiff Viavi Solutions Inc. (“Viavi”) is a U.S.-based company headquartered in — 18 — Delaware that designs optical filters using hydrogenated silicon for 3D motion sensing. First Am. — 19 — Compl. (“FAC”), ECF No. 21 ¶¶ 4, 19. It holds various patents associated with this technology. — 20 — Id. ¶¶ 3, 5. Suppliers to electronic device manufacturers incorporate these patented filter designs — 21 — into their optical filters, which are, in turn, used to produce sensing systems in mobile phones and — 22 — tablets that use facial and gesture recognition technology. Id. ¶ 10. Viavi is purportedly “the — 23 — industry’s leading supplier of high-performance filters for motion sensing systems in consumer — 24 — electronics.” Id. ¶ 9. — 25 — Defendant Platinum Optics Technology Inc. (“PTOT”) is a Taiwan-based company that — 26 — manufactures optical filters that employ hydrogenated silicon, which allegedly utilizes Viavi’s — 27 — patented technology. Id. ¶¶ 12, 20. PTOT represents that it is “one of the few manufacturers” that 1 provide optical filters for 3D motion sensing modules to electronic device manufacturers. Id. ¶ 13. 2 Viavi alleges that since May 1, 2020, PTOT has been making and selling low angle shift optical 3 filters that employ hydrogenated silicon layers as a high refractive index layer—filters which 4 include Viavi’s patented technology (hereinafter, the “Accused Filters”)—for inclusion in 5 electronic devices that contain 3D camera devices. Id. ¶ 12. These devices are allegedly imported 6 and sold in the U.S. Id. On July 14, 2020, Viavi sent PTOT a letter asserting that the Accused 7 Filters were infringing Viavi’s patents and that PTOT was knowingly selling its filters for 8 incorporation into mobile devices to third party Company1 intended for the U.S. market. Id. ¶ 14. 9 Viavi initiated this action arising under 35 U.S.C. § 271 (b) on August 27, 2021, seeking a 10 judgment that PTOT induced infringement of at least one claim of each of the following patents: 11 (1) U.S. Patent No. 9,354,369 (the “’369 patent”); (2) U.S. Patent No. 9,588,269 (the “’269 12 patent”); (3) U.S. Patent No. 10,222,526 (the “’526 patent”); and (4) U.S. Patent No. 11,131,794 13 (the “’794 patent”) (collectively, the “Asserted Patents”).2 See generally FAC. Viavi seeks past 14 and future compensatory damages, including lost profits, prejudgment interest, and any other 15 available damages based under 35 U.S.C. § 284 . Id. at 10 (“Prayer for Relief) ¶ 2. Viavi also 16 requests an award of any other supplemental damages, including attorneys’ fees and costs 17 incurred, pursuant to 35 U.S.C. § 285 . Prayer for Relief ¶ 3. 18 On October 21, 2022, Viavi moved for leave to file a second amended complaint (“SAC”) 19 based on newly discovered information.3 See ECF No. 87. One week later, on October 28, 2022, 20 PTOT filed a motion for summary judgment of non-infringement (“MSJ”) and opposed Viavi’s — 21 — — 22 — 1 The Court will refer to “Company” throughout this Order to maintain the confidentiality of the 23 third-party company, which has been redacted from the parties’ filings. 2 Viavi has since voluntarily dismissed it’s claim with respect to U.S. Patent No. ’369. See ECF 24 No. 26. 3 The Court is in an unusual position due to the timing of the parties filing their motions. Because 25 the Court recently granted leave to file an amended complaint alleging direct infringement while Defendant’s motion for summary judgment on Plaintiff’s induced infringement claim was 26 pending, the Court will construe Defendant’s motion as a partial motion for summary judgment without requiring the parties to refile their briefs. Plaintiff may file the SAC pursuant to the 27 Court’s Order granting leave to file an amended complaint and incorporating the Court’s ruling on this motion. 1 motion (“Opp’n”). See MSJ, ECF No. 89; Opp’n, ECF No. 98. 2 II. LEGAL STANDARD 3 Summary judgment is proper where the pleadings, discovery, and affidavits show that 4 there is “no genuine issue as to any material fact and that the moving party is entitled to judgment 5 as a matter of law.” Fed. R. Civ. P. 56(c). A fact is “material” if it would affect the outcome of 6 the suit under the governing law, and a disputed issue is “genuine” if the “evidence is such that a 7 reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., — 8 — 477 U.S. 242 , 248–49 (1986). 9 The party moving for summary judgment bears the initial burden of identifying those 10 portions of the record which demonstrate the absence of a genuine issue of material fact. See 11 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden 12 of proof at trial, “the burden on the moving party may be discharged by ‘showing’—that is, 13 pointing out to the district court—that there is an absence of evidence to support the nonmoving 14 party’s case.” Id. at 325 . If the moving party can meet this initial burden, the burden then shifts to 15 the non-moving party to produce admissible evidence and set forth specific facts showing that a 16 genuine issue of material fact does indeed exist for trial. See Nissan Fire & Marine Ins. Co. v. 17 Fritz Companies, Inc., 210 F.3d 1099 , 1103 (9th Cir. 2000). If the non-moving party produces 18 enough evidence to show a genuine issue of material fact exists, then it defeats the motion; 19 otherwise, the moving party is entitled to summary judgment. Id. 20 In considering a motion for summary judgment, the Court must view the evidence in the 21 light most favorable to the non-moving party. See Tolan v. Cotton, 572 U.S. 650, 655 (2014). 22 The Court may not weigh conflicting evidence as to a disputed fact nor may it make credibility 23 determinations; any disputed factual issues must be resolved in favor of the non-moving party. 24 See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626 , 630–31 (9th Cir. 1987). 25 However, the Court need not credit the non-moving party’s version of events where it is blatantly 26 contradicted by the record. See Orn v. City of Tacoma, 949 F.3d 1167, 1171 (9th Cir. 2020). — 27 — III. DISCUSSION — 1 — The FAC alleges that PTOT induced infringement of the Asserted Patents pursuant to 35 2 U.S.C. § 271 (b). PTOT moves for summary judgment of non-infringement on the basis that Viavi — 3 — has failed to satisfy the requisite elements of induced infringement. MSJ at 4. — 4 — Section 271 provides “[w]however actively induces infringement of a patent shall be liable — 5 — as an infringer.” 35 U.S.C. § 271 (b). A patentee asserting induced infringement must show the — 6 — following three elements: (1) the accused inducer “directly infringed the asserted claims” of the — 7 — patents, Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 843 F.3d 1315, 1332 (Fed. — 8 — Cir. 2016), (2) “the accused inducer took an affirmative act to encourage infringement” and (3) the — 9 — accused inducer had “the knowledge that the induced acts constitute patent infringement,” — 10 — Astornet Techs. Inc. v. BAE Sys., Inc., 802 F.3d 1271, 1279 (Fed. Cir. 2015). A patentee must — 11 — show more than mere knowledge that the acts alleged constitute infringement; the accused inducer — 12 — must “possess[] specific intent to encourage another’s infringement.” Minn. Mining & Mfg. Co. v. — 13 — Chemque, Inc., 303 F.3d 1294 , 1304–05 (Fed. Cir. 2002); see also Microsoft Corp. v. DataTern, — 14 — Inc., 755 F.3d 899, 904 (Fed. Cir. 2014). In other words, Viavi must show both that PTOT — 15 — “knowingly induced infringement and possessed specific intent to encourage another’s — 16 — infringement.” Kyocera Wireless Corp. v. Int’l 12 Trade Comm’n, 545 F.3d 1340 , 1353–54 (Fed. — 17 — Cir. 2008) (citation omitted). — 18 — The knowledge requirement may be satisfied by circumstantial evidence showing — 19 — “knowledge that the induced acts constitute patent infringement” or willful blindness as to the — 20 — same. Glob.-Tech Appliances, Inc. v. SEB S.A., 563 15 U.S. 754 , 766 (2011); see also MEMC — 21 — Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369 , 1380 (Fed. Cir. 2005) — 22 — (inducement may be proven via circumstantial evidence). The patentee’s burden of proof in — 23 — showing these facts is by a “preponderance of the evidence . . . which simply requires providing — 24 — that the infringement was more likely than not to have occurred.” Warner-Lambert Co. v. Teva — 25 — Pharm. USA, Inc., 418 F.3d 1326 , 1341 n.15 (Fed. Cir. 2005). “[F]or purposes of induced — 26 — infringement liability, willful blindness has two requirements: ‘(1) the defendant must subjectively — 27 — 1 believe that there is a high probability that a fact exists and (2) the defendant must take deliberate 2 actions to avoid learning of that fact.’” Largan Precision Co, Ltd v. Genius Elec. Optical Co., 86 3 F. Supp. 3d 1105, 1119 (N.D. Cal. 2015) (quoting Glob.-Tech Appliances, Inc. v. SEB S.A., 563 4 U.S. 754 , 769 (2011)). For example, “[w]illful blindness requires not just a failure to ask whether 5 any sales infringed, but an affirmative act to remain ignorant of infringing sales.” Largan 6 Precision Co, Ltd, 86 F. Supp. 3d at 1120. 7 1. Whether Viavi can show that PTOT knowingly induced infringement 8 PTOT contends that Viavi has failed to show that PTOT knowingly induced infringement 9 or was willfully blind of such infringement in the U.S. MSJ at 11. “[I]nducement requires 10 evidence of culpable conduct, directed to encouraging another’s infringement, not merely that the 11 inducer had knowledge of the direct infringer’s activities.” DSU Med. Corp. v. JMS Co., 471 F.3d 12 1293, 1306 (Fed. Cir. 2006). 13 PTOT asserts that it does not sell filters directly to Company. MSJ at 12. PTOT maintains 14 that it sells filters to customers in Asia, and it does not know whether those filters are ultimately 15 incorporated in Company’s products sold in the U.S. due to a “complex and opaque supply chain.” 16 Id. at 11; see Lin Dep. Tr. 163:9-12 (“PTOT only knows that the Company-approved band pass 17 filters manufactured by PTOT were shipped to the [module integrator], and PTOT does not know 18 the whereabouts of the filters subsequently”). PTOT describes a four-step supply chain where: (1) 19 PTOT sells the filters to its customers in Asia; (2) “downstream integrators” (or “module 20 integrators”) incorporate the filters into its lenses and camera modules; (3) the lenses and camera 21 are supplied to “system integrators” who further assemble the lenses and camera modules into 22 mobile phones and tablets; and finally, (4) the assembled phones and tablets are sold to Company 23 in the U.S for sale worldwide. Id. at 13. PTOT states that it “has no insight and cannot track how 24 its filters travel in the global stream of commerce.” Id. at 7–8. 25 There is no dispute that filters and lenses are randomly incorporated at many, if not all, of 26 the muti-supply chain process. For example, the parties agree that system integrators, who 27 assemble Company mobile phones and tablets, are “aware that Viavi and PTOT are the two 1 suppliers of optical filters used in camera modules installed in [Company] mobile devices, and 2 receives the assembled camera modules incorporating their filters . . . and installs them into 3 [Company’s] mobile devices.” ECF No. 88-13 ¶¶ 3-4; see MSJ at 8; ECF No. 109 (“Opp’n”) at 4. 4 The parties also agree that the system integrators treat lenses that have Company’s specifications 5 indiscriminately such that “camera modules are not selected for incorporation into [Company’s] 6 mobile devices based on camera module vendor.” Opp’n at 4 (citing ECF No. 88-13 ¶ 5); see also 7 MSJ at 8. Finally, it is undisputed that camera modules with Company’s specifications are 8 likewise installed in Company’s mobile devices indiscriminately with respect to the country where 9 it’s mobile device will be sold. ECF No. 88-13 ¶ 6; see MSJ at 8; Opp’n at 4. 10 According to PTOT, the nature of this supply chain negates the knowledge requirement of 11 inducement. MSJ at 12. PTOT cites Largan in support of this argument, a case that involved 12 optical lenses sold in an identical supply chain. Largan Precision Co, Ltd v. Genius Elec. Optical 13 Co., 86 F. Supp. 3d 1105 (N.D. Cal. 2015). Plaintiff Largan and Defendant Genius both supplied 14 lenses to Apple and Motorola for incorporation into cellphones and tablets. Id. at 1107 . Genius 15 sold its lenses to module integrators in Asia, and module integrators combined the lenses with 16 other components to build cameras. Id.at 1109. The module integrators then sold the cameras to 17 system integrators located in Asia who incorporated the cameras into phones and tablets. Id. 18 Finally, the phones and tablets were sold to Apple or Motorola for sale to end users in the United 19 States and various other countries. Id. Like PTOT, Genius’s employees did not know where the 20 lenses incorporated into Apple or Motorola products ended up, although it was undisputed that 21 Genius sold a fraction of accused products directly to Apple in Cupertino. Id. 22 Genius argued that, because of the multi-step supply chain, it did not know whether its 23 lenses go into products that are sold into the U.S. Id. at 1118 . The district court agreed with 24 Genius regarding the lenses that were not solely provided by Genius,4 noting that “[f]or all Genius 25 knows, Apple and Motorola’s supply chain could be structured in such a way that all of the Apple — 26 — 27 4 There were two categories of filters at issue in Largan: filters of which Genius was the sole supplier and filters of which Genius was one of multiple suppliers. 1 and Motorola end products that are sold in the United States incorporate only lenses sold by 2 Largan or other suppliers, rather than Genius.” Id. at 1118 . Thus, the court concluded that, even if 3 Genius did induce Apple and Motorola to use its filters, it would still lack the requisite knowledge 4 that the included acts constituted infringement because the products could be sold outside the U.S., 5 i.e., not infringe the asserted patents. Id. 6 PTOT asks the Court to follow Largan and grant its motion for summary judgment of no 7 induced infringement. Viavi argues that the court should deny summary judgment because (1) 8 PTOT knows that its filters are sold in the United States based on circumstantial evidence or (2) 9 PTOT is willfully blind to that fact. Opp’n at 9. Viavi contends that, unlike in Largan, Viavi has 10 presented sufficient circumstantial evidence establishing a genuine disputed fact of whether PTOT 11 knew its filters were sold in the U.S. Id. 12 a. Evidence of PTOT’s knowledge and intent to induce 13 With respect to the first argument, Viavi contends that the following circumstantial 14 evidence establishes disputed material facts: (1) discovery of a mobile device made by Company 15 and sold in the U.S. with a non-Viavi manufactured infringing filter (Filter #25) and an admission 16 by Company that only PTOT and Viavi supply that exact filter; (2) randomized filter incorporation 17 at multiple steps in the supply chain; (3) PTOT’s filters meet Company’s technical specifications; 18 and (4) the U.S. is one of Company’s largest markets. For the reasons discussed below, drawing 19 all inferences in the light most favorable to Viavi, a jury could not reasonably find that PTOT had 20 the requisite knowledge or was willfully blind to the infringement. 21 First, Viavi argues that it found an Accused Filter in Company’s mobile device sold in the 22 U.S. Viavi alleges that in 2021—approximately a year after Viavi had sent PTOT a letter 23 notifying it of the allegedly infringing filters—it purchased a mobile device in Colorado with an 24 Accused Filter called “Filter #25” that was not manufactured by Viavi. Id. Viavi analyzed the 25 filter and believes it is a PTOT-manufactured filter. Id. Viavi contends that there are only two 26 manufacturers of this specific filter, Viavi and PTOT, which the Company has confirmed. Id. In 27 response to Viavi’s subpoena, Company stated that it “has determined that it sources bandpass 1 filters indirectly from only Viavi and PTOT.” ECF No. 88-9 at 16. This fact, combined with the 2 fact that the U.S. is one of Company’s largest markets, allegedly demonstrates that PTOT “knew 3 or should have known.”5 Opp’n at 11–12; Hector Decl., Ex. D. 4 PTOT contends that it also analyzed Filter #25 but concluded that the filter was not 5 manufactured by PTOT.6 ECF No. 115 (“Reply”) at 4; see ECF No. 88-23 ¶ 2; see also Opp’n at 6 16. Relying on Largan, PTOT argues that the fact that the parties dispute whether PTOT 7 manufactured Filter #25 does not create a genuine issue of material fact because, regardless, PTOT 8 maintains that it does not know where it’s filters ultimately end up. Reply at 5. The Court agrees 9 that, even assuming the filter in the mobile device purchased in Colorado contains PTOT’s filter, 10 the fact that PTOT’s filter was sold in the U.S. does not inform the Court whether PTOT knows 11 that the end-products are sold in the U.S. Moreover, Viavi has not put forth any evidence 12 establishing that PTOT was aware that it was only one of two manufacturers of the Accused Filter. 13 The Largan opinion provides useful guidance. Largan argued that Genius was the “only 14 supplier” of the lens incorporated into a certain Apple product. Largan Precision Co, Ltd, 86 F. 15 Supp. 3d at 1119. Based on the evidence, the Largan court reasoned that it was unclear how 16 Genius would have known that it was the sole-supplier, and taken with “conflicting and uncertain 17 evidence demonstrates at most a genuine fact dispute about whether Genius ever knew it was the 18 sole supplier for certain products at certain time periods—a dispute that the Court cannot resolve 19 either way on summary judgment.” Here, conversely, there is no allegation nor evidence that 20 PTOT was the only manufacturer of an Accused Filter. Viavi expressly asserts that there are only — 21 — — 22 — 5 The “knew or should have known” standard is no longer the correct legal standard. See Glob.- 23 Tech Appliances, Inc., 563 U.S. 754 ; Roche Diagnostics Corp. v. Meso Scale Diagnostics, LLC, 30 F.4th 1109 , 1118 (Fed. Cir. 2022) (“While it’s true that we previously applied a “knew or 24 should have known” formulation, we’ve since made clear that, to the extent our prior case law allowed the finding of induced infringement based on recklessness or negligence, such case law is 25 inconsistent with Global-Tech and no longer good law.”) (quotations and citation omitted). 6 PTOT also contends that Viavi’s direct infringement allegation does not appear in the FAC and 26 therefore it cannot form the basis of Viavi’s alleged issues of material fact. As previously stated, because the Court granted Viavi’s motion for leave to file an amended complaint, the Court will 27 construe PTOT’s motion as a partial motion for summary judgment only with respect to induced infringement. 1 two manufacturers of Filter #25. Conversely, the Largan court found that, with respect to the 2 filters of which Genius was one of multiple suppliers, there was a lack of evidence that Genius had 3 the requisite knowledge or was otherwise willfully blind. 4 Viavi also contends the undisputed fact that PTOT’s filters are randomly incorporated in 5 Company’s mobile phones and tablets that are destined for the U.S is circumstantial evidence of 6 PTOT’s knowledge. Opp’n at 11. However, PTOT argues this is precisely the argument that the 7 Largan court rejected. PTOT asserts the same argument as Genius—that it does not know where 8 its lenses end up after they are sold to the module integrators. Id. at 1118 . In other words, like 9 Genius, PTOT does not know whether its lenses go into products that are sold into the U.S. Id.; 10 see MSJ at 11; Lin Dep. Tr. 163:9-12. 11 Viavi also cites the Federal Circuit’s opinion affirming the Largan district court, which 12 reasoned that “there is no evidence in the record that a single Apple product sold in the United 13 States contained an accused Genius Lens” nor did Largan “present any evidence from the supply 14 chain to establish what process the module integrators and system integrators used to select lenses 15 in products designed for the United States.” Largan Precision Co. v. Genius Elec. Optical Co., — 16 — 646 F. App’x 946, 949 (Fed. Cir. 2016). Here, Viavi presents evidence tending to show that 17 PTOT’s Accused Filter was sold in Company’s mobile phone in the U.S. Viavi also argues that 18 Company’s supply chain randomly selects between two suppliers, PTOT and Viavi, and unlike in 19 Largan, Viavi has put forth sufficient evidence that filter incorporation is random in multiple steps 20 in the supply chain. However, for the reasons already discussed, this evidence does not 21 necessarily speak to PTOT’s knowledge or intent. Indeed, the Federal Circuit focused only on 22 whether Largan had established a direct infringement—a necessary threshold finding to establish 23 induced infringement. The Federal Circuit affirmed, holding that, because Largan failed to present 24 evidence sufficient to establish a prima facie showing of direct infringement by Apple, and 25 “induced infringement requires proof of underlying direct infringement, no reasonable jury could 26 find Genius liable for induced infringement.” Largan Precision Co, 646 F. App’x at 950–51. 27 Viavi asserts that PTOT the company “disclaims knowledge of discovery” with respect to 1 the two-supplier market and random incorporation of lenses because PTOT’s outside counsel is 2 aware of these facts. Opp’n at 13–14. Viavi argues that the knowledge of PTOT’s lawyers is 3 imputed to PTOT because they are purportedly acting as PTOT’s agent in this action. Id. at 14. 4 The Court is not persuaded. Viavi relies on the Ninth Circuit’s decision in Feature Realty, Inc. v. 5 City of Spokane, 331 F.3d 1082 (9th Cir. 2003), and a district court decision in Veritas Operating 6 Corp. v. Microsoft Corp., 562 F. Supp. 2d 1141 (W.D. Wash. 2008), holding that the lawyers’ 7 knowledge of the existence of the patents at issue was imputed onto Feature Reality, Inc. and 8 Microsoft Corp., respectively.7 Neither case supports Viavi’s assertion that confidential 9 information provided by third parties pursuant to a protective order is imputed to PTOT by its 10 outside counsel. 11 Finally, Viavi provides evidence that PTOT’s filter meet Company’s technical 12 specifications. Opp’n at 11; see ECF No. 88-3 at 5–7; 13–14. PTOT’s corporate representative 13 testified that PTOT must provide documentation that the filters manufactured by PTOT meet 14 Apple’s specifications. Lin Dep. Tr., at 20, 29, 31-32, 44-45, 124-125. The fact that the products 15 are capable of infringing because they meet certain specifications does not necessarily show 16 requisite intent to induce. See Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1322 (Fed. Cir. 17 2009); see also Skyworks Sols., Inc. v. Kinetic Techs., Inc., No. 14-CV-00010-SI, 2015 WL 18 881670, at *8–10 (N.D. Cal. Mar. 2, 2015) (no intent to induce infringement where plaintiff 19 alleged that defendant “prepared marketing materials for the accused parts, provided technical 20 support for the accused parts and deliberately provided accused parts for phones it knew were sold 21 in the United States.”).8 — 22 — — 23 — 7 As PTOT points out, in Veritas, knowledge of counsel was imputed under the now-rejected 24 “constructive knowledge” or “should have known” standard. 8 The Court does not conclude that manufacturing a product pursuant to a company’s technical 25 specifications could never be evidence from which a jury could infer intent to induce infringement, only that Viavi has not sufficiently demonstrated intent to induce under the facts 26 before this Court. cf. Largan Precision Co, Ltd, 86 F. Supp. 3d at 1119 (holding that a jury could “infer intent and affirmative acts to induce infringement based on [defendant’s] attempts to design 27 lenses to meet Apple’s specifications,” assuming that defendant knows those lenses end up in the U.S.). 1 Thus, Viavi has not produced sufficient evidence from which a jury could infer that PTOT 2 possessed the specific intent to induce infringement. 3 b. Evidence of “willful blindness” 4 Nor has Viavi established that PTOT willfully blinded itself to Company’s infringing acts. 5 Opp’n at 15–16. “[F]or purposes of induced infringement liability, willful blindness has two 6 requirements: ‘(1) the defendant must subjectively believe that there is a high probability that a 7 fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.’” 8 Largan Precision Co, Ltd, 86 F. Supp. 3d at 1119 (quoting Glob.–Tech, 563 U.S. at 769 ). Viavi 9 once again relies on the unsupported allegation that PTOT knows that Viavi and PTOT are the 10 only two approved suppliers of the filter, and therefore there is a “high probably that devices with 11 its infringing filters are shipped to the United States,” to establish that PTOT willfully turned a 12 blind eye. Opp’n at 16. 13 First, Viavi accuses PTOT of deliberately analyzing Filter #25 incompletely “or in such a 14 way to avoid learning that the filter was its own.” Id. at 17. Viavi provides no support to 15 substantiate this allegation. Second, Viavi speculates that, when faced with Viavi’s allegations of 16 infringement, PTOT neglected to ask Company “whether there are other approved filter suppliers 17 besides Viavi and PTOT,” which necessarily assumes that PTOT knew it was one of only two 18 suppliers of the Accused Filter. Opp’n at 17. Finally, Viavi asserts that PTOT turned a blind eye 19 during discovery by “choosing” to remain “ignorant of harmful information” and has strategically 20 opposed discovery in the prior litigation between Viavi and PTOT, although Viavi provides no 21 additional detail or explains how PTOT’s conduct veered from how parties normally behave 22 during discovery. Id.; see Viavi Sols. Inc. v. Platinum Optics Tech. Inc., Case No. 5:20-cv-05501. 23 Viavi argues the following actions by PTOT as evidence of active steps taken to encourage 24 infringement by Company: PTOT makes filters that meet Company’s technical specifications; 25 PTOT attends regular meetings with Company and makes adjustments to its production capacity 26 following these meetings; PTOT discusses quality and technical issues with Company in the U.S.; 27 and PTOT has calls with Company’s global supply managers located in the U.S. to discuss 1 production. Opp’n at 19–20. However, these facts do not support a finding of willful blindness. 2 The willfully blind standard “surpasses recklessness and negligence.” Glob.–Tech, 563 U.S. at 3 769. “[I]nducement requires evidence of culpable conduct, directed to encouraging another's 4 infringement, not merely that the inducer had knowledge of the direct infringer’s activities.” DSU 5 Med. Corp., 471 F.3d at 1306 ; Commil USA, LLC v. Cisco Sys., Inc., 575 U.S. 632, 632 (2015) 6 (“Global–Tech requires . . . proof the defendant knew the acts were infringing.”). Indeed, despite 7 a “significant amount of U.S.-based activity” on defendant’s part, including, inter alia, “meeting 8 regularly with [Company] design engineers, sending product samples to [Company] for pre9 approval, attending sales meetings with its customers, and providing post-sale support for its 10 products” the Largan court nonetheless found that that these facts were insufficient to establish 11 willful blindness. Largan Precision Co, Ltd, 86 F. Supp. 3d at 1111, 1119 . 12 Thus, Viavi has failed to offer any evidence showing PTOT subjectively believed there 13 was a high probability that its filters were important and sold in the U.S. nor has Viavi shown any 14 deliberate action by PTOT. 15 * * * 16 In sum, PTOT has carried its burden of showing the absence of evidence as to the requisite 17 knowledge element of Viavi’s claim, and Viavi has failed to show sufficient “facts demonstrating 18 the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th 19 Cir. 2010). Accordingly, the Court GRANTS summary judgment with respect to induced 20 infringement. 21 IV. CONCLUSION 22 Based on the foregoing, Defendant’s motion for summary judgment of non-infringement is 23 GRANTED. Because the Court recently granted Viavi’s motion for leave to amend to add 24 allegations of direct infringement (ECF No. 141), the Court’s ruling with respect to PTOT’s 25 motion for summary judgment is not dispositive. — 26 — — 27 — 1 IT IS SO ORDERED. 2 Dated: October 13, 2023 — 3 — — 4 — EDWARD J. DAVILA 5 United States District Judge — 6 — — 7 — — 8 — — 9 — — 10 — — 11 — a 12 — 13 — © — 15 — — 16 — it Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — 28 || Case No.: 5:21-cv-06655-EJD GRANTING DEF.'S MOT. FOR SUMM. J.