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COOLEY LLP ATTORNEYS AT LAW PALO ALTO CYTEKS REPLY ISO MOT. TO DISMISS CASE NO. 18-CV-000933MMC 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 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION BECTON, DICKINSON AND COMPANY, Plaintiff and Counterclaim- Defendant, v. CYTEK BIOSCIENCES INC., MING YAN, ALFRED RILEY, DAVID VRANE, ZHENYU ZHANG, ZHENXIANG GONG, ALEX ZHONG, MARIA JAIMES, GIL REINEN, AND JANELLE SHOOK, Defendants and Counterclaimants. Case No. 3:18-cv-0933 MMC CYTEK BIOSCIENCES INC.’S REPLY IN SUPPORT OF MOTION TO DISMISS BECTON, DICKINSON AND COMPANYS FIFTH AND EIGHTH CLAIMS FOR RELIEF FOR FAILURE TO STATE A CLAIM (FED. R. CIV. P. 12(B)(6)) Date: February 21, 2020 Time: 9:00 a.m. Courtroom: 7, 19th Floor Judge: The Honorable Maxine M. Chesney Trial Date: January 19, 2021 Second Am. Complaint: December 19, 2019 COOLEY LLP STEPHEN C. NEAL (170085) ([email protected]) JEFFREY S. KARR (186372) ([email protected]) MATTHEW E. BUCCELLATO (296079) ([email protected]) 3175 Hanover Street Palo Alto, CA 94304-1130 Telephone: (650) 843-5000 Facsimile: (650) 849-7400 MARTIN S. SCHENKER (109828) ([email protected]) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 ADAM S. GERSHENSON (pro hac vice) ([email protected]) DANE R. VORIS (281051) ([email protected]) 500 Boylston Street, 14th Floor Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400 Attorneys for Defendant and Counterclaimant Cytek Biosciences Inc. ROPERS, MAJESKI, KOHN & BENTLEY TODD A. ROBERTS (129722) ([email protected]) EDWIN B. BARNES (295454) ([email protected]) 1001 Marshall Street, Suite 500 Redwood City, CA 94063-2052 Telephone: (650) 364-8200 Facsimile: (650) 780-1701 Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 1 of 21
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Page 1: COOLEY LLP ROPERS, MAJESKI, KOHN & BENTLEY STEPHEN C. … Vs Cytek Case/doc 160... · ALEX ZHONG, MARIA JAIMES, GIL REINEN, AND JANELLE SHOOK, Defendants and . Case No. 3:18 -cv 0933

COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

BECTON, DICKINSON AND COMPANY,

Plaintiff and Counterclaim-Defendant,

v.

CYTEK BIOSCIENCES INC., MING YAN, ALFRED RILEY, DAVID VRANE, ZHENYU ZHANG, ZHENXIANG GONG, ALEX ZHONG, MARIA JAIMES, GIL REINEN, AND JANELLE SHOOK,

Defendants and Counterclaimants.

Case No. 3:18-cv-0933 MMC

CYTEK BIOSCIENCES INC.’S REPLY IN

SUPPORT OF MOTION TO DISMISS

BECTON, DICKINSON AND COMPANY’S

FIFTH AND EIGHTH CLAIMS FOR RELIEF

FOR FAILURE TO STATE A CLAIM (FED.R. CIV. P. 12(B)(6))

Date: February 21, 2020 Time: 9:00 a.m. Courtroom: 7, 19th Floor Judge: The Honorable Maxine M. Chesney Trial Date: January 19, 2021

Second Am. Complaint: December 19, 2019

COOLEY LLP STEPHEN C. NEAL (170085) ([email protected]) JEFFREY S. KARR (186372) ([email protected]) MATTHEW E. BUCCELLATO (296079) ([email protected]) 3175 Hanover Street Palo Alto, CA 94304-1130 Telephone: (650) 843-5000 Facsimile: (650) 849-7400

MARTIN S. SCHENKER (109828) ([email protected]) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222

ADAM S. GERSHENSON (pro hac vice) ([email protected]) DANE R. VORIS (281051) ([email protected]) 500 Boylston Street, 14th Floor Boston, MA 02116 Telephone: (617) 937-2300 Facsimile: (617) 937-2400

Attorneys for Defendant and Counterclaimant Cytek Biosciences Inc.

ROPERS, MAJESKI, KOHN & BENTLEY

TODD A. ROBERTS (129722)

([email protected])

EDWIN B. BARNES (295454)

([email protected])

1001 Marshall Street, Suite 500

Redwood City, CA 94063-2052

Telephone: (650) 364-8200 Facsimile: (650) 780-1701

Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 1 of 21

Page 2: COOLEY LLP ROPERS, MAJESKI, KOHN & BENTLEY STEPHEN C. … Vs Cytek Case/doc 160... · ALEX ZHONG, MARIA JAIMES, GIL REINEN, AND JANELLE SHOOK, Defendants and . Case No. 3:18 -cv 0933

COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

TABLE OF CONTENTS

Page

i. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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

II. BD FAILS TO SAVE ITS CLAIM FOR BREACH OF CONTRACT. ................................. 1

A. BD Failed to Identify Even the Legal Effect of Its License Agreements. ................... 2

B. BD Failed to Plausibly Allege the Breach of Any Contract. ....................................... 4

C. BD Failed to Adequately Allege any Contract Damages. ........................................... 6

III. BD FAILS TO SAVE ITS CLAIM FOR COPYRIGHT INFRINGEMENT. ........................ 7

A. BD Failed to Plausibly Allege Infringement of Any Copyright. ................................. 7

B. BD Failed to Plausibly Allege that Cytek Violated the Scope of Any Software

License Agreement. ................................................................................................... 10

C. BD Failed to Allege Its Entitlement to Statutory Damages, Attorneys’ Fees,

Cytek’s Profits, or Injunctive Relief under the Copyright Act. ................................. 11

IV. BD’S IMPROPER ATTEMPT TO PROFFER EXTRINSIC “EVIDENCE” IS A

DISTRACTION. .................................................................................................................... 13

A. BD Improperly Attached New Exhibits to Its Opposition. ........................................ 13

B. Even if the Court Considers BD’s Exhibits, Its Claims are Still Implausible. .......... 14

V. CONCLUSION ...................................................................................................................... 15

Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 2 of 21

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

TABLE OF AUTHORITIES

Page(s)

ii. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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Cases

Actuate Corp. v. Fidelity Nat’l Info. Servs., Inc.,

2014 WL 4182093 (N.D. Cal. Aug. 22, 2014) ..............................................................................10

Adobe Sys. Inc. v. A & S Elecs. Inc.,

153 F. Supp. 3d 1136 (N.D. Cal. 2015) .......................................................................................6, 7

AJ Mgmt. Consulting LLC v. MBC FZ-LLC,

2014 WL 2878891 (N.D. Cal. June 24, 2014) ...........................................................................5, 11

Arma v. Buyseasons, Inc.,

591 F. Supp. 2d 637 (S.D.N.Y 2008).....................................................................................4, 9, 10

Asper v. Wells Fargo Bank,

2018 WL 2287331 (S.D. Cal. May 18, 2018) ................................................................................14

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ...............................................................................................................4, 5, 10

Bird v. First Alert, Inc.,

2014 WL 7248734 (N.D. Cal. Dec. 19, 2014) .........................................................................12, 13

Blizzard Entm’t, Inc. v. Lilith Games (Shanghai) Co. Ltd.,

149 F. Supp. 3d 1167 (N.D. Cal. 2015) ...........................................................................7, 9, 14, 15

Calip v. Tanigawa,

2017 WL 512780 (N.D. Cal. Feb. 8, 2017) .................................................................................2, 4

In re Century Aluminum Co. Sec. Litig.,

729 F.3d 1104 (9th Cir. 2013) .........................................................................................................1

Clifton v. Houghton Mifflin Harcourt Publishing Co.,

152 F. Supp. 3d 1221 (N.D. Cal. 2015) ...........................................................................................9

Codding v. Pearson Educ. Inc.,

2018 WL 3609027 (N.D. Cal. July 27, 2018) ..................................................................................6

Coto Settlement v. Eisenberg,

593 F.3d 1031 (9th Cir. 2010) .......................................................................................................13

Cree, Inc. v. Tarr, Inc.,

2017 WL 3219974 (S.D. Cal. July 28, 2017) ..............................................................................5, 6

Derek Andrew, Inc. v. Poof Apparel Corp.,

528 F.3d 696 (9th Cir. 2008) .........................................................................................................12

Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 3 of 21

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

TABLE OF AUTHORITIES (Continued)

Page(s)

iii. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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Dickert v North Coast Family Health Inc.,

2015 WL 3988676 (D.N.H. June 10, 2015) .............................................................................12, 13

El-Sedfy v. WhatsApp Inc.,

2016 WL 6427855 (N.D. Cal. Oct. 31, 2016)..................................................................................8

Grouse River Outfitters Ltd. v. NetSuite, Inc.,

2016 WL 5930273 (N.D. Cal. Oct. 12, 2016)..................................................................................2

Haskins v. Symantec Corp.,

2013 WL 6234610 (N.D. Cal. Dec. 1, 2013) ...........................................................................1, 2, 3

Hunter v. Tarantino,

2010 WL 11579019 (C.D. Cal. July 15, 2010) ..............................................................................12

James River Insurance Co. v. DCMI, Inc.,

2012 WL 2873763 (N.D. Cal. July 12, 2012) ..............................................................................2, 7

Khoja v. Orexigen Therapeutics, Inc.,

899 F.3d 988 (9th Cir. 2018) .........................................................................................................14

Langan v. United Servs. Auto. Ass’n,

69 F. Supp. 3d 965 (N.D. Cal. 2014) .......................................................................................2, 3, 4

Lickerish, Inc. v. Alpha Media Grp.,

2014 WL 12589641 (C.D. Cal. Jan. 2, 2014) ................................................................................12

Mackie v. Rieser,

296 F.3d 909 (9th Cir. 2002) .........................................................................................................12

McAfee v. Francis,

2011 WL 3293759 (N.D. Cal. Aug. 1, 2011) ..........................................................................2, 3, 4

MDY Indus., LLC v. Blizzard Entm’t, Inc.,

629 F.3d 928 (9th Cir. 2010) .........................................................................................................10

Menzel v. Scholastic, Inc.,

2018 WL 1400386 (N.D. Cal. Mar. 19, 2018) ...........................................................................9, 10

In re MIPs Technologies, Inc. Derivative Litigation,

2008 WL 3823726 (N.D. Cal. Aug. 13, 2008) ................................................................................5

Multi-Craft Imports Inc. v. Mariposa USA, Inc.,

2017 WL 5664996 (C.D. Cal. Sept. 14, 2017) ................................................................................8

Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 4 of 21

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

TABLE OF AUTHORITIES (Continued)

Page(s)

iv. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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New Name, Inc. v. Walt Disney Co.,

2007 WL 5061697 (C.D. Cal. Dec. 3, 2007) ...................................................................................8

Qingdao Tang-Buy International Import & Export Company v. Preferred Secured

Agents,

2016 WL 6524396 (N.D. Cal. Nov. 3, 2016) ..................................................................................5

Rentmeester v. Nike, Inc.,

883 F.3d 1111 (9th Cir. 2018) .............................................................................................8, 14, 15

Richtek Technology Corp. v. UPI Semiconductor Corp.,

2011 WL 166198 (N.D. Cal. Jan. 18, 2011) ....................................................................................8

Salt Optics, Inc. v. Jand, Inc.,

2010 WL 4961702 (C.D. Cal. Nov. 19, 2010) ...............................................................................10

Schreiber Distribution Co. v. Serv-Well Furniture Co.,

806 F.2d 1393 (9th Cir. 1986) .....................................................................................................5, 6

Shade v. Gorman,

WL 196400 (N.D. Cal. Jan. 28, 2009) ...........................................................................................12

Sierra View Local Health Care District v. Influence Health, Inc.,

2016 WL 2346799 (E.D. Cal. May 4, 2016) ...................................................................................7

Smith v. Weeknd,

2019 WL 6998666 (C.D. Cal. Aug. 23, 2019) ...............................................................................11

Soo Park v. Thompson,

851 F.3d 910 (9th Cir. 2017) .........................................................................................................10

Star Fabrics, Inc. v Dillards, Inc.,

2011 WL 13217121 (C.D. Cal. July 11, 2011) ................................................................................9

Sutherland v. Francis,

2013 WL 2558169 (N.D. Cal. June 10, 2013) .........................................................................2, 3, 4

Synopsys, Inc. v. ATopTech, Inc.,

2013 WL 5770542 (N.D. Cal. Oct. 24, 2013)..................................................................................8

U.S. v. Ritchie,

342 F.3d 903 (9th Cir. 2003) .........................................................................................................13

Whittlestone, Inc. v. Handi-Craft Co.,

618 F.3d 970 (9th Cir. 2010) .........................................................................................................11

Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 5 of 21

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

TABLE OF AUTHORITIES (Continued)

Page(s)

v. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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Yagman v. Garcetti,

743 Fed. App’x 837 (9th Cir. Aug. 8, 2018)..................................................................................14

In re Zynga Privacy Litig.,

2011 WL 7479170 (N.D. Cal. June 15, 2011) .................................................................................7

Statutes

17 U.S.C.

§ 102(b) ..........................................................................................................................................15

§ 106...........................................................................................................................................8, 15

§ 412...............................................................................................................................................12

§ 504(b) ..........................................................................................................................................12

Other Authorities

Fed. R. Civ. P.

8..................................................................................................................................................8, 14

12(b)(6) ....................................................................................................................................11, 14

12(d) ...............................................................................................................................................13

N.D. Cal. Civ. L.R. 7-4(a)(4) .................................................................................................................1

Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 6 of 21

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

1. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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I. INTRODUCTION

As Cytek’s opening brief demonstrated, BD’s new copyright and contract claims—raised

nearly two years into this litigation—are neither plausible nor factually supported. Far from

overcoming this reality, BD’s opposition only confirms that those claims should be dismissed.

First, BD admits that its Second Amended Complaint (“SAC”) must plead facts supporting a

plausible claim, but never attempts to meet that standard, instead insisting that its claims should

survive based on nothing more than mere “notice.” (ECF No. 158 (“Opp’n”) at 2, 6, 7, 8, 11, 12, 13.)

But notice alone is not enough to overcome a motion to dismiss. In re Century Aluminum Co. Sec.

Litig., 729 F.3d 1104, 1107 (9th Cir. 2013). Indeed, BD even fails to provide a statement of relevant

facts in its opposition—a violation of Civil Local Rules and a glaring admission of the lack of factual

support for its copyright and contract claims. N.D. Cal. Civ. L.R. 7-4(a)(4).

Second, BD’s opposition improperly and unsuccessfully attempts to rewrite the SAC’s

deficient allegations to generate a purported claim that does not appear in the pleadings.

Third, BD attaches to its opposition Cytek documents referenced nowhere in the SAC, a

misapplication of the incorporation-by-reference doctrine that in any case does not render its claims

plausible. In fact, BD’s attempt to submit and rely on extraneous documents is a tacit admission that

the allegations in the SAC are insufficient to support its claims.

Finally, as BD well knows, BD’s representations about the results of the parties’ forensic

analysis in this case are unsupported and misleading. BD’s trade-secret claims have foundered. While

the lack of merit of BD’s trade-secrets claims is for another day, the Court should dismiss the SAC’s

copyright-infringement and breach-of-contract claims and not allow BD to expand this dispute now.

Just two months of discovery remain. BD failed to satisfy its pleading burdens in the SAC, and

should not be entitled to waste the parties’ remaining time and resources on its new, fatally flawed

claims. The Court should grant Cytek’s motion to dismiss in its entirety.

II. BD FAILS TO SAVE ITS CLAIM FOR BREACH OF CONTRACT.

As Cytek’s motion demonstrated, BD failed to allege multiple essential elements of its fifth

claim for breach of contract against Cytek, including (1) the contracts purportedly at issue, (2) Cytek’s

breach of those contracts, and (3) any actual damages resulting from Cytek’s breach. See Haskins v.

Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 7 of 21

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

2. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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Symantec Corp., 2013 WL 6234610, at *10 (N.D. Cal. Dec. 1, 2013) (recognizing essential elements

of contract claim).1 BD’s opposition attempts to cure these clear deficiencies, but fails.

A. BD Failed to Identify Even the Legal Effect of Its License Agreements.

To allege a contract, BD must (1) plead its terms “verbatim in the complaint” or attach a copy

to the complaint, or (2) plead its “legal effect” by alleging “the substance of its relevant terms.” Id.;

Langan v. United Servs. Auto. Ass’n, 69 F. Supp. 3d 965, 979 (N.D. Cal. 2014). BD “must at least

allege the material terms of a specific contract . . . and state which obligations a defendant allegedly

breached.” Id. at 980 (emphasis added). BD’s SAC fails to satisfy this basic pleading requirement.

As a threshold matter, BD cannot dispute that its SAC fails to attach or even describe the

relevant terms of any alleged license agreement for FACSDiva 6.1.3, FACSDiva 7.0, or FACStation

6.0.4. (See SAC ¶¶ 180–84, 245–49.) For that reason alone, the Court should dismiss BD’s claims

based on those purported contracts. Sutherland v. Francis, 2013 WL 2558169, at *4 (N.D. Cal. June

10, 2013) (dismissing because “[n]o copies of the agreements are attached to the [amended complaint],

nor are the essential terms of the agreement . . . pled with any particularity”); McAfee v. Francis, 2011

WL 3293759, at *2 (N.D. Cal. Aug. 1, 2011) (same).

Notwithstanding this clear omission, BD contends it alleged the “legal effects” of those

agreements. (Opp’n at 4–6.) Even a cursory reading of the SAC proves otherwise. (SAC ¶¶ 180–84,

245–49.) To plead a contract’s “legal effects,” the plaintiff still must allege “the substance of its

relevant terms.” Haskins, 2013 WL 6234610, at *10; Grouse River Outfitters Ltd. v. NetSuite, Inc.,

2016 WL 5930273, at *12 (N.D. Cal. Oct. 12, 2016); Calip v. Tanigawa, 2017 WL 512780, at *4

(N.D. Cal. Feb. 8, 2017) (plaintiff must “clearly allege the substance of the relevant terms”).2 The

SAC says nothing about the relevant terms of BD’s licenses for FACSDiva 6.1.3, FACSDiva 7.0, and

FACStation 6.0.4. (SAC ¶¶ 180–84, 245–49.)

At most, the SAC recognizes that BD provides customers—like Cytek—with “limited and

non-transferrable licenses” for its software products, and then identifies a purported license for

1 Unless otherwise noted, internal quotes and citations are omitted from case citations. 2 James River Insurance Co. v. DCMI, Inc. does not address the standard for pleading a contract’s

“legal effects.” 2012 WL 2873763, at *2–4 (N.D. Cal. July 12, 2012). Moreover, unlike here, the court

in James River could at least reasonably infer the asserted contract’s breached terms. Id. at *3.

Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 8 of 21

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

3. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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FACSDiva 8.0 as an “example” of this type of license. (Id. ¶¶ 181–82.) Contrary to BD’s opposition,

the SAC never alleges that the license terms for FACSDiva 6.1.3, FACSDiva 7.0, and FACStation

6.0.4 are identical to or even similar to those reflected in BD’s license for FACSDiva 8.0. (See id.)

Nor does BD give any reason to believe this is the case: FACStation is an entirely different product,

and BD released the various asserted versions of its FACSDiva software years apart. (See ECF No.

153 (“Mot.”) at 6.) Thus, “there is no way for the Court to know even generally what the terms” of the

FACSDiva 6.1.3, FACSDiva 7.0, and FACStation 6.0.4 licenses are. Langan, 69 F. Supp. 3d at 980.

BD’s attempt to distinguish the cases cited by Cytek in its motion as involving “far less detail”

than the SAC falls flat. (Opp’n at 6–7.) In each of those cases, like here, the plaintiff alleged the

existence of contracts, but failed to adequately describe their relevant terms. Langan, 69 F. Supp. 3d

at 979–80 (dismissing contract claim where plaintiff only generally described the parties’ contract

obligations); Haskins, 2013 WL 6234610 at *10 (dismissing claim even though defendant attached an

agreement to its motion to dismiss and plaintiff at least tried “to cobble together the terms of an implied

contract”); Sutherland, 2013 WL 2558169 *1–4 (dismissing claims where plaintiffs generally alleged

the parties’ contract obligations, because none of the “essential terms . . . other than amount” were

“plead with any particularity”); McAfee, 2011 WL 3293759, at *2 (dismissing claims where plaintiff

generally alleged the parties’ contract obligations because, like here, plaintiff did not allege “a contract

date” or “the exact terms of the agreement that were allegedly breached”). The SAC provides no detail

at all about the terms of the FACSDiva 6.1.3, FACSDiva 7.0, and FACStation 6.0.4 licenses, and any

claim based on those purported contracts fails as a matter of law. (See SAC ¶¶ 180–84.)

Finally, even though BD attaches an “exemplary” unsigned and unauthenticated “Software

License Agreement” for a different product, FACSDiva 8.0 (see Opp’n at 5), the SAC nowhere alleges

that Cytek actually executed that agreement in the form attached.3 (Mot. at 9.) Indeed, the purported

“Software License Agreement” does not even refer to Version 8.0. (SAC Ex. 6.) The SAC merely

attaches a purported copy of this unexecuted agreement, quotes a few selected provisions, and states,

“[u]pon information and belief,” that “Cytek entered into Software License Agreements with BD

3 BD’s opposition fails to mention the FACSDiva 8.0 “Software Reference Manual,” which does not

purport to be a contract at all. (Compare Opp’n, with SAC ¶ 183 & Ex. 7; see also Mot. at 5.)

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MOT. TO DISMISS

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relating to each of BD’s FACSDiva 6.1.3, 7.0, and 8.0 software works”—without even alleging that

Cytek executed the version of the agreement attached. (SAC ¶¶ 182, 248.) Thus, even for FACSDiva

8.0, BD fails to “allege the material terms of a specific contract” entered into with Cytek. Langan,

69 F. Supp. 3d at 980 (emphasis added). This Court should dismiss BD’s contract claim in its entirety.

B. BD Failed to Plausibly Allege the Breach of Any Contract.

In addition to alleging a contract, BD must also adequately plead how Cytek breached that

contact. Calip, 2017 WL 512780 at *4—5 (dismissing claim where complaint failed to allege “how

any [contractual] obligation was breached”); Sutherland, 2013 WL 2558169, at *4 (dismissing

contract claim where complaint lacked “more specific allegations as to breach”); McAfee, 2011 WL

3293759, at *2 (same). BD does not dispute this obligation in its opposition, but instead contends that

its barebones SAC provides sufficient detail to state a plausible claim. (Opp’n at 7–9.) Not so.

First, BD claims that the SAC provides Cytek with “notice” of the “relevant timeframe” of its

alleged breaches. (Opp’n at 7.) But, according to BD’s own allegations, this “relevant timeframe”—

the development and promotion of Cytek’s products—covers at least 2014 to the present. (See, e.g.,

SAC ¶ 4.) A “relevant timeframe” of more than five years with no additional supporting allegations

hardly amounts to “notice,” let alone the type of factual allegation needed to move BD’s claim “across

the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Second, even while admitting that the single purported agreement attached to its SAC

expressly permits copying, BD claims it does so “only in very limited circumstances, and expressly

prohibit[s] copying beyond those limits.” (Opp’n at 7 (emphasis in original).) This observation

establishes nothing. BD still fails to allege any factual support for the conclusion that Cytek breached

any particular license agreement for its asserted software works by “making unauthorized copies of

those works.” (SAC ¶¶ 184, 247); see Arma v. Buyseasons, Inc., 591 F. Supp. 2d 637, 643 (S.D.N.Y

2008) (dismissing claim where “the bare allegations that Defendants ‘failed to make timely payments’

and ‘failed to properly account’” under a contract were “unsupported by any specific facts indicating

what particular payments were late, when they were due and made, how such late payments give rise

to a claim under [that contract], or how such a claim translates into damages”).

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COOLEY LLP ATTO RN EY S AT LA W

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5. CYTEK’S REPLY ISO

MOT. TO DISMISS

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Third, BD baldly claims that its asserted software license agreements “do not allow for Cytek

to use BD’s software in its research and development for a competing product.” (Opp’n at 8 (emphasis

in original).) BD, however, identifies no such restriction in even the single, insufficient “Software

License Agreement” attached to its SAC. (Id.) In reality, BD’s “Software License Agreement” broadly

licenses BD’s software for any “use” and follows with certain enumerated restrictions, none of which

prohibit the general use of software in competitive “research and development.” (SAC Ex. 6, ¶¶ 1–2.)

BD’s attempt to invent a new restriction now should be rejected out of hand. See AJ Mgmt. Consulting

LLC v. MBC FZ-LLC, 2014 WL 2878891, at *4–5 (N.D. Cal. June 24, 2014) (dismissing claim for

breach of contract where the allegedly breached term did not appear in contract).4

Finally, BD attempts to erase the SAC’s unquestionably ambiguous “and/or” allegations by

arguing that the “tortfeasor” (in its contract claim) is obvious and the “surrounding language” used by

the SAC make clear that what BD really meant was “and.” (Opp’n at 8.) Neither explanation carries

weight. First, BD’s “and/or” allegations are fatally flawed not because it is unclear who allegedly

breached the purported contracts, but because they make it utterly unclear what alleged conduct, if

any, occurred. (Mot. at 9–10.) BD’s allegations are just like those in In re MIPs Technologies, Inc.

Derivative Litigation, where the plaintiff’s “hopelessly vague” “and/or” allegations made it impossible

to evaluate a key issue—in MIPs who had knowledge of certain facts, and here what Cytek is alleged

to have done to breach any contract. 2008 WL 3823726, at 6 (N.D. Cal. Aug. 13, 2008).

BD’s reliance on Schreiber Distribution Co. v. Serv-Well Furniture Co. and Cree, Inc. v. Tarr,

Inc. is similarly misplaced. (Opp’n at 8.) Neither decision addresses the ambiguity of “and/or”

language. 806 F.2d 1393, 1400 (9th Cir. 1986)5; 2017 WL 3219974, at *4 (S.D. Cal. July 28, 2017).

Moreover, in both cases, the acts connected by “and/or” language—mail and/or wire fraud in

Schreiber, and building, maintaining and/or utilizing websites in Cree—were sufficient by themselves

4 Qingdao Tang-Buy International Import & Export Company v. Preferred Secured Agents does not

help BD. (See Opp’n at 8.) There, the complaint identified “specific purchase orders for specific goods

with defined specifications by specific dates”—“the 2013 holiday season and the 2015 spring/summer

season”—and “breach by late delivery and defective products.” 2016 WL 6524396, at *4 (N.D. Cal.

Nov. 3, 2016). Thus, Qingdao involved far more detail than supplied by the SAC here. 5 Schreiber also pre-dates the Twombly/Iqbal “plausibility” standard by nearly two decades.

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MOT. TO DISMISS

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to satisfy an element of the asserted causes of action. See 806 F.2d at 1400; 2017 WL 3219974, at *4.

By contrast, neither allegation that BD connects with “and/or” language is sufficient to state a plausible

breach of contract because BD fails to identify any factual allegations supporting either. (Mot. at 10.)

BD’s vague “and/or” language only cements the inadequacy of its allegations.6 Because BD fails to

plausibly allege a breach, the Court should dismiss BD’s contract claim.

C. BD Failed to Adequately Allege any Contract Damages.

BD does not dispute that damages are an essential element of a contract claim, or that such

damages must be “clearly ascertainable in both their nature and origin.” (Mot. at 10.) Instead, BD

strains to rewrite the SAC as alleging that Cytek was “able to facilitate the develop[ment] and

promot[ion] of [its] own products” through a purported breach, “caus[ing] BD to lose sales and Cytek

to gain sales at BD’s expense.” (Opp’n at 9 (emphasis added).) The SAC contains no such allegations,

contending only that breaches occurred “in connection with developing and promoting Cytek’s own

products” and “BD suffered harm as a result.” (SAC ¶¶ 184, 248 (emphasis added).) This Court should

reject BD’s attempt to rewrite the SAC to add a damages theory.

Even if BD had alleged that an alleged breach “facilitated” Cytek’s product development and

promotion, BD still failed to allege how that resulted in any “harm”—much less any “los[t] sales”

belatedly invoked in BD’s opposition. (Id.); see Codding v. Pearson Educ. Inc., 2018 WL 3609027,

at *7 (N.D. Cal. July 27, 2018) (“[C]ausation of damages in contract cases, as in tort cases, requires

that the damages be proximately caused by the defendant’s breach, and that their causal occurrence be

at least reasonably certain,” and “[m]ere conclusory statements do not suffice . . . .”). BD alleges no

facts to plausibly connect any purported (and unalleged) “los[t] sales” to Cytek’s use of BD software.

(SAC ¶¶ 184, 248.) Nor does BD attempt to quantify whatever “harm” it allegedly suffered. (Id.) Such

conclusory allegations of “harm” cannot support a claim for breach of contract. Adobe Sys. Inc. v. A

& S Elecs. Inc., 153 F. Supp. 3d 1136, 1146 (N.D. Cal. 2015) (dismissing claim where plaintiff alleged

6 BD also criticizes Cytek for using “and/or” language in its counterclaims. (Opp’n at 9.) But the two

examples of “and/or” language cited by BD make clear that Cytek was alleging alternative theories of

liability based on actual or threatened antitrust violations and harm. (ECF No. 131 ¶¶ 75, 79.) Unlike

BD, Cytek did not employ vague “and/or” language when alleging the factual support for its

counterclaims, which, in any case, have been dismissed.

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MOT. TO DISMISS

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only that breach “has damaged Plaintiff entitling it to damages and reasonable fees and costs”); In re

Zynga Privacy Litig., 2011 WL 7479170, at *2 (N.D. Cal. June 15, 2011) (dismissing claim where

plaintiffs alleged only that “they have suffered and will continue to suffer damages and losses”).7

Finally, neither James River nor Sierra View Local Health Care District v. Influence Health,

Inc. save BD’s claim. (Opp’n at 9.) In James River, the plaintiff connected its alleged damages to its

insurer’s rescission of certain insurance policies—thus providing a basis to believe that at least some

damage would plausibly occur because of the defendant’s breach. 2012 WL 2873763 at *4. And in

Sierra View, the counterclaimant alleged that the breaching party “failed to pay a $130,000 license

fee, as well as a $3,125 monthly software maintenance fees [sic]”—thus providing at least a baseline

for actual damages. 2016 WL 2346799, at *5 (E.D. Cal. May 4, 2016). Here, BD identifies no basis

to believe that Cytek’s alleged breaches will result in any harm to BD. For these reasons as well, this

Court should dismiss BD’s contract claim in its entirety.

III. BD FAILS TO SAVE ITS CLAIM FOR COPYRIGHT INFRINGEMENT.

As Cytek’s motion explained, BD’s copyright claim must be dismissed because the SAC fails

to plausibly allege (1) any actual infringement of BD’s asserted copyrights, and (2) any breach of BD’s

purported license agreements such that BD may bring a claim for infringement of its asserted software

copyrights. (Mot. at 11–15.) BD’s opposition fails to cure either of these fatal defects.

A. BD Failed to Plausibly Allege Infringement of Any Copyright.

“To state a claim for copyright infringement a plaintiff must plausibly allege . . . copying of

constituent parts of the work that are original.” Blizzard Entm’t, Inc. v. Lilith Games (Shanghai) Co.

Ltd., 149 F. Supp. 3d 1167, 1172 (N.D. Cal. 2015) (emphasis added). Actionable copying, moreover,

7 BD’s attempt to distinguish Adobe and Zynga by claiming that each “turned” on the lack of a causal

connection between breach and harm is wrong. (Opp’n at 9.) In Zynga, the Court dismissed a contract

claim “because California law requires a showing of ‘appreciable and actual damage’ to assert a breach

of contract claim, but Plaintiffs only alleged that they have ‘suffered and will continue to suffer

damages and losses.” 2011 WL 7479170, at *2. Like the plaintiffs in Zynga, BD fails to allege any

“actual” damage—just unspecified “harm.” (SAC ¶¶ 184, 248.) Moreover, in Adobe, the plaintiff did

in fact connect its purported “damages” to the alleged breach, noting specifically that the defendant’s

“willful breach . . . has damaged Plaintiff.” 153 F. Supp. 3d at 1146. But even with this “conclusory”

allegation—which is at least as specific as BD’s—the Adobe court still found it “unclear” what

“particular damages” the plaintiff sought, and thus dismissed the claim. Id.

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COOLEY LLP ATTO RN EY S AT LA W

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8. CYTEK’S REPLY ISO

MOT. TO DISMISS

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requires both “‘copying’ and ‘unlawful appropriation.’” Rentmeester v. Nike, Inc., 883 F.3d 1111,

1117 (9th Cir. 2018). The SAC fails to allege a single, specific fact supporting actionable copying by

Cytek, and BD’s opposition fails to demonstrate otherwise.

First, BD admits that the factual basis for Cytek’s purported infringement is captured in only

three conclusory allegations, all of which generically refer to purported violations of the Copyright

Act—e.g., preparing and distributing copies and derivative works. (Opp’n at 10–11); see 17 U.S.C.

§ 106. The numerous cases cited in Cytek’s motion make clear that such allegations—devoid of factual

support—do not suffice to state a claim for copyright infringement. El-Sedfy v. WhatsApp Inc., 2016

WL 6427855, at *5 (N.D. Cal. Oct. 31, 2016) (conclusory allegations that defendants “unlawfully

copied, prepared, published, and distributed Plaintiff’s copyrighted work, portions thereof, or

derivative works” are insufficient); Richtek Tech. Corp. v. UPI Semiconductor Corp., 2011 WL

166198, at *3 (N.D. Cal. Jan. 18, 2011) (allegations that defendants “made unauthorized copies,

prepared derivative works and distributed copies [of the copyrighted works] all without [plaintiff’s]

permission” are “laughable”; “[b]ald recitations of legal conclusion . . . do not state a claim upon which

relief can be granted”); New Name, Inc. v. Walt Disney Co., 2007 WL 5061697, at *3 (C.D. Cal.

Dec. 3, 2007) (allegations that merely state a party’s statutory rights are “precisely” the type of

pleadings “the Supreme Court held [are] insufficient to state a claim for relief”); Synopsys, Inc. v.

ATopTech, Inc., 2013 WL 5770542, at *4 (N.D. Cal. Oct. 24, 2013) (Rule 8 requires a plausible claim

and, accordingly, a copyright plaintiff “must plead some non-speculative facts about what Defendant

infringed and how.”).8 This fundamental failure alone dooms BD’s copyright claim.

Second, BD’s opposition still fails to identify a single representative infringement to support

its claims. Multi-Craft Imports Inc. v. Mariposa USA, Inc., 2017 WL 5664996, at *3 (C.D. Cal.

Sept. 14, 2017) (“Absent any allegations of even representative infringements, [a complaint] fails to

provide notice as a matter of law.”). Absent representative infringements, neither Cytek nor the Court

8 BD attempts to distinguish El-Sedfy, Richtek, and New Name because the plaintiffs in those cases

captured the same conclusory allegations as BD in only one or two sentences. (Opp’n at 11.) That BD

repeated its boilerplate allegations more times than the plaintiffs in those cases does not make its

copyright claim any more plausible. BD’s opposition, moreover, does not even address Synopsys.

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COOLEY LLP ATTO RN EY S AT LA W

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9. CYTEK’S REPLY ISO

MOT. TO DISMISS

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can “meaningfully evaluate the plausibility” of the SAC. Blizzard, 149 F. Supp. 3d at 1175.

BD attempts to sidestep this requirement by pointing to a single, vague allegation that Cytek

made “copies altered to remove BD logos and product names and replace[d] them with Cytek or

Cytoville names and artwork.” (Opp’n at 11—12.) But even that allegation—made “[u]pon

information and belief” (see Mot. at 13–14)—fails to provide fair notice of Cytek’s alleged

infringement, much less state a plausible claim. Among other things, the SAC fails to identify which

of the ten asserted works are even addressed by this single allegation. (Mot. at 13.) BD contends now,

in opposition, that Cytek altered all ten asserted works in this manner. (Opp’n at 12.) At no point does

the SAC attempt to connect Cytek’s alleged infringement to even a single asserted work, even though

BD is asserting ten different works in multiple formats (software and documents) published over more

than ten years. (See Mot. at 6.) BD’s single, vague allegation of “altered” works is insufficient.

BD cannot save its claim by invoking inapposite authorities.9 In Clifton v. Houghton Mifflin

Harcourt Publishing Co., for example, the plaintiff alleged that defendant exceeded the terms of a

license agreement in multiple ways—including by exceeding limitations on the number of times, how,

and where defendant could publish copyrighted photographs—and thus infringed plaintiff’s

copyrights. 152 F. Supp. 3d 1221, 1222, 1224 (N.D. Cal. 2015). The court declined to require

additional, more specific facts supporting each breach, which were “peculiarly within the possession

and control” of the defendant. Id. at 1225. The same cannot be said here, where BD purports to have

“evidence” to support its allegations, but chose to omit it from the SAC. (ECF Nos. 133 at 4, 149 at

1.) Moreover, at least one court in this district has questioned Clifton’s holding, concluding that

Supreme Court and Ninth Circuit precedent require more to state a plausible claim in similar

circumstances. Menzel v. Scholastic, Inc., 2018 WL 1400386, at *4 (N.D. Cal. Mar. 19, 2018).

Even less helpful to BD is Arma, which recognizes that a complaint must allege “by what acts

during what time the defendant infringed the copyright.” 591 F. Supp. 2d at 644. In that case, the

plaintiff alleged that defendants displayed a specific number of copyrighted images—“at least 26”—

9 Star Fabrics, Inc. v Dillards, Inc. does not even address a motion to dismiss. 2011 WL 13217121

(C.D. Cal. July 11, 2011). Rather, the court analyzed the “sufficiency of the complaint” under the

“discretionary standard” for entry of default judgment, which is not applicable here. Id. at *2.

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COOLEY LLP ATTO RN EY S AT LA W

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10. CYTEK’S REPLY ISO

MOT. TO DISMISS

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on their website over a period of just three weeks following the termination of a license agreement. Id.

at 641, 644 (license terminated on November 15, 2007; complaint filed December 3, 2007). BD offers

no specific number of infringements, nor comes close to specifying a well-defined period over which

Cytek’s alleged infringement occurred. See Salt Optics, Inc. v. Jand, Inc., 2010 WL 4961702, at *7

(C.D. Cal. Nov. 19, 2010) (distinguishing Arma because, among other things, the plaintiff there “stated

a specific number of instances of infringement”).

Finally, the Court should reject BD’s attempt to justify its “information and belief” pleading

with empty assurances that discovery is “likely” to yield “much more evidence.”10 (Opp’n at 13

(emphasis in original).) Conclusory allegations like BD’s are insufficient under Iqbal and Twombly

whether or not they are asserted on information and belief. Menzel, 2018 WL 1400386 at *4.

Moreover, the facts purportedly “evidenc[ing]” Cytek’s alleged infringement are, by BD’s own

account, not “peculiarly within the possession and control of” Cytek. Soo Park v. Thompson, 851 F.3d

910, 928 (9th Cir. 2017); (Mot. at 13–14). Finally, the SAC presents no “factual information”

justifying an inference of further, undiscovered misconduct, and BD’s attempt to bootstrap its

unrelated, unsupported trade-secret allegations to fill this gap are misplaced. Soo Park, 851 F.3d at

928. BD’s plea for more discovery to satisfy its pleading obligations puts the cart before the horse: To

obtain discovery, BD must first state a plausible claim for relief. Twombly, 550 U.S. at 556. Because

BD fails to plausibly allege infringement, the Court should dismiss its copyright claim.

B. BD Failed to Plausibly Allege that Cytek Violated the Scope of Any Software License Agreement.

A copyright owner who has licensed its rights may sue for infringement only if the accused

infringer acted outside the scope of that license. MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d

928, 939 (9th Cir. 2010). Indeed, “the potential for infringement exists only where the licensee’s action

(1) exceeds the license’s scope (2) in a manner that implicates one of the licensor’s exclusive statutory

rights.” Id. at 940 (emphasis added); Actuate Corp. v. Fidelity Nat’l Info. Servs., Inc., 2014 WL

4182093, at *2–3 (N.D. Cal. Aug. 22, 2014). The SAC fails to allege a single well-pleaded fact

10 BD’s suggestion that Cytek’s productions to date have been “limited” is also misleading. (Opp’n at

1.) To date, Cytek has produced more than 58,000 documents.

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MOT. TO DISMISS

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demonstrating that Cytek violated the scope of any software license agreement, much less in a way

implicating one of BD’s exclusive rights. See supra Section II; (Mot. at 14–15.)

BD attempts to circumvent this fact by contending that the SAC “expressly pleads that, by

(inter alia) making unauthorized additional copies of and derivative works based on BD’s copyrighted

works, Cytek exceeded the scope of those licenses, thereby breached those licenses, and lost its right

to make copies of those works.” (Opp’n at 14.) In fact, the SAC makes no such allegation. (See SAC

¶¶ 178, 180–84.) The SAC alleges only that Cytek made “unauthorized copies” of BD’s asserted

software works “and/or” used “those works beyond the scope of their respective software license

agreements.” (Id. ¶¶ 184, 247.) Again, the use of “and/or” means that BD has not even alleged that

Cytek did either. BD also does not allege how or why any copies Cytek purportedly made were

“unauthorized.” (Id.); AJ Mgmt., 2014 WL 2878891 at *4 (plaintiff must allege “factual allegations

that plausibly demonstrate” unauthorized conduct under license). Nor does the SAC allege how Cytek

“use[d]” BD’s software beyond the scope of any agreement. (SAC ¶¶ 184, 247.) And contrary to BD’s

strained reading of its own complaint, the SAC’s “and/or” allegations make clear that Cytek’s

purported “copying” is something different than its purported “use” beyond the scope of a license

agreement. (Mot. at 15). Finally, BD offers zero support for its suggestion that any Cytek conduct

resulted in it “los[ing] its right to make copies” under the only purported “Software License

Agreement” attached to the SAC. (Opp’n at 14.) For example, BD alleges no termination of any

software license agreement. (See SAC Ex. 6, ¶ 7 (right to terminate for breach).)

This Court should reject BD’s attempt to rewrite the SAC, and should dismiss BD’s claim for

copyright infringement at least as it relates to asserted software works.

C. BD Failed to Allege Its Entitlement to Statutory Damages, Attorneys’ Fees,

Cytek’s Profits, or Injunctive Relief under the Copyright Act.

Courts may dismiss portions of a complaint, including a plaintiff’s requested relief, under Rule

12(b)(6). Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974 (9th Cir. 2010); Smith v. Weeknd,

2019 WL 6998666, at *7 (C.D. Cal. Aug. 23, 2019) (dismissing request for punitive damages, statutory

damages, and attorneys’ fees). BD’s opposition fails to revive its fatally flawed requests for statutory

damages, attorneys’ fees, Cytek profits, and injunctive relief. (Opp’n at 15–16.)

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COOLEY LLP ATTO RN EY S AT LA W

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12. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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First, BD cannot revive its doomed claim for statutory damages and attorneys’ fees. (Mot. at

16–17.) BD does not—and cannot—dispute that the SAC fails to allege the date Cytek’s purported

infringement commenced, an essential element of a claim for statutory damages and attorneys’ fees.

Lickerish, Inc. v. Alpha Media Grp., 2014 WL 12589641, at *5–6 (C.D. Cal. Jan. 2, 2014). Nor does

BD dispute that the SAC alleges that Cytek’s purported infringement necessarily commenced well

before any asserted works were registered and is simply “continuing” today. (Compare Mot. at 16–

17, with Opp’n at 15.) Given that alleged commencement period, the Copyright Act prohibits BD from

obtaining statutory damages and attorneys’ fees as a matter of law, and “details of the full extent of

Cytek’s infringement” cannot change that. 17 U.S.C. § 412; see also Derek Andrew, Inc. v. Poof

Apparel Corp., 528 F.3d 696, 700–01 (9th Cir. 2008) (“[I]nfringement ‘commences’ for the purposes

of § 412 when the first act in a series of acts constituting continuing infringement occurs.”).

Second, BD cannot disclaim its obligation to establish a causal connection between any

purported infringement and requested Cytek profits. (Opp’n at 15–16.) A plaintiff is entitled to the

alleged infringer’s profits only if those profits are “attributable to the infringement,” and “any demand

for relief must be supported by facts showing at least potential entitlement to that form of relief.”

17 U.S.C. § 504(b); Bird v. First Alert, Inc., 2014 WL 7248734, at *4 (N.D. Cal. Dec. 19, 2014).

Regardless of whether a claim for profits is considered on the pleadings or on summary judgment, the

plaintiff must still present facts establishing that causal connection. Mackie v. Rieser, 296 F.3d 909,

915–16 (9th Cir. 2002) (motion for summary judgment); Hunter v. Tarantino, 2010 WL 11579019, at

*10–11 (C.D. Cal. July 15, 2010) (motion to dismiss). Nor is it sufficient for BD to rewrite the SAC

to claim now that “Cytek copied and altered BD’s copyrighted works in order to facilitate its own

‘product development and commercialization efforts.’” (Opp’n at 16; see supra Section III.A.) Even

if that were true, BD’s conclusory allegation still fails to demonstrate how any Cytek profits are

“attributable to that infringement.” 17 U.S.C. § 504(b).11

11 Shade v. Gorman, cited in BD’s opposition, does not address a claim for profits under the Copyright

Act. 2009 WL 196400 (N.D. Cal. Jan. 28, 2009). And Dickert v North Coast Family Health Inc., an

unpublished, out-of-circuit decision, actually recognized it was reasonable to infer from the allegations

that some of the defendant’s revenues arose through its allegedly infringing website. 2015 WL

3988676, at *4 (D.N.H. June 10, 2015). Here, BD offers no facts remotely connecting Cytek’s

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

13. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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Third, BD does not dispute that a plaintiff seeking injunctive relief “must allege facts showing

that he/she is ‘realistically threatened by a repetition of the violation.’” Bird, 2014 WL 7248734, at

*4. Instead, BD attempts to distinguish Bird on its facts. (Opp’n at 16.) Yet, BD has cited the Bird

opinion for the broader proposition that where “alleged future harm is merely speculative, an

injunction is not justified.” (ECF No. 88 at 24.) That is the case here: BD’s conclusory allegation of

“continuing” infringement is pure speculation. (See Opp’n at 16); Bird, 2014 WL 7248734, at *4

(“[A]ny demand for relief must be supported by facts showing at least potential entitlement to that

form of relief.”). The Court should dismiss BD’s request for statutory damages, attorneys’ fees, Cytek

profits, and injunctive relief under the Copyright Act.

IV. BD’S IMPROPER ATTEMPT TO PROFFER EXTRINSIC “EVIDENCE” IS A DISTRACTION.

BD effectively admits its SAC is deficient by proffering extrinsic “evidence” of Cytek’s

alleged infringement with its opposition. (Opp’n at 1–2, Exs. 1–4.) BD’s strategy is a distraction: BD

has no basis to attach these documents, and even it did, those documents do not cure the SAC.

A. BD Improperly Attached New Exhibits to Its Opposition.

BD’s only explanation for attaching Cytek documents to its opposition is the incorporation-

by-reference doctrine. (Opp’n at 2, 12–13.) That doctrine allows a court, in its discretion, to consider

an extrinsic document on a motion to dismiss if (1) “the plaintiff refers extensively to the document

[in its complaint] or the document forms the basis of the plaintiff’s claim,” (2) “the document’s

authenticity is not in question,” and (3) “there are no disputed issues as to the document’s relevance.”12

U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038

(9th Cir. 2010). The doctrine is a limited exception to the general rule that a court considering extrinsic

materials on a motion to dismiss must convert the motion to one for summary judgment. Fed. R. Civ.

P. 12(d). BD offers no justification to apply the incorporation-by-reference doctrine here.

Even assuming BD’s premise that its new exhibits “form the bases for [its] copyright-related

claims”—which further confirms the weakness of BD’s claims—BD offers no support for the

proposition that a plaintiff can use incorporation by reference to salvage its own factually deficient

revenues to its alleged infringement of BD’s asserted copyrights. 12 To be clear, Cytek disputes the relevance of each of BD’s new exhibits. See infra Section IV.B.

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

14. CYTEK’S REPLY ISO

MOT. TO DISMISS

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complaint on a motion to dismiss. (Opp’n at 1, 2.) Indeed, such a use subverts the purpose of the

doctrine, which is designed to discourage—not condone—“artful pleading by plaintiffs.” Khoja v.

Orexigen Therapeutics, Inc., 899 F.3d 988, 1003 (9th Cir. 2018). “The doctrine prevents plaintiffs

from selecting only portions of documents that support their claims, while omitting portions of those

very documents that weaken—or doom—their claims.” Id. at 1002. The doctrine prevents “plaintiffs

from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which

their claims are based.” Id. at 1002–03. Here, BD seeks to do the opposite.

BD’s cited authorities do not hold otherwise. In Asper v. Wells Fargo Bank, the court granted

a plaintiff’s unopposed request to consider documents outside the pleadings, but those documents did

not relate to the court’s ultimate analysis in dismissing the plaintiff’s claims. 2018 WL 2287331, at

*3–5 (S.D. Cal. May 18, 2018). And in Yagman v. Garcetti, the Ninth Circuit considered documents

proffered by the plaintiff in support of its holding that plaintiff’s claim was barred by res judicata,

without addressing the factual sufficiency of the plaintiff’s complaint under Rule 8. 743 Fed. App’x

837, 840—41 (9th Cir. Aug. 8, 2018). In both cases, the court dismissed the plaintiff’s claim. Neither

case suggests that a plaintiff may cure its otherwise deficient complaint through extrinsic evidence on

a motion to dismiss. This Court should reject BD’s improper exhibits outright.

B. Even if the Court Considers BD’s Exhibits, Its Claims are Still Implausible.

Even if this Court were to consider BD’s opposition exhibits, and it should not, those exhibits

do not make BD’s claims plausible:

Exhibit 1 – BD quotes a single comment to a coarse drawing of a flow cytometer in a Cytek

document, without providing the Court any factual context about what the document is or whether it

reflects anything related to Cytek’s marketed instruments. (Opp’n at 1, Ex. 1.) Moreover, even

assuming the document evidenced Cytek’s copying of BD materials, BD fails to demonstrate

(a) whether such materials are even original, and thus protected, under copyright, or (b) whether

Cytek’s copying is sufficient to render that document and any protected elements of a BD asserted

work “substantially similar.” See Rentmeester, 883 F.3d at 1116–17 (plaintiff must plausibly allege

copying of “protected aspects” of asserted work) (“To infringe, the defendant must also copy enough

of the plaintiff’s expression . . . to render the two works substantially similar.”); Blizzard, 149 F. Supp.

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COOLEY LLP ATTO RN EY S AT LA W

PA LO AL TO

15. CYTEK’S REPLY ISO

MOT. TO DISMISS

CASE NO. 18-CV-000933MMC

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3d at 1172 (infringement requires “copying of constituent parts of the work that are original”).

Exhibit 2 – BD quotes a single statement with zero context from an email chain that suggests

no copying of BD materials whatsoever; rather, it simply notes that two processes are the same. (Opp’n

at 1, Ex. 2.) But the Copyright Act does not extend protection to any process, procedure, or method of

operation, “regardless of the form in which it is described, explained, illustrated, or embodied in [the

copyrighted] work.” Rentmeester, 883 F.3d at 1117 (quoting 17 U.S.C. § 102(b)).

Exhibits 3 & 4 – BD quotes a single statement from each document indicating that Cytek used

BD software in the past. (Opp’n at 2, Ex. 3.) As BD knows, simply using software is neither copyright

infringement nor evidence of a breach of some unspecified license. These documents in no way

suggest that Cytek copied, modified, or distributed any BD software, or that Cytek violated any of

BD’s rights as a purported copyright owner. See 17 U.S.C. § 106 (specifying exclusive rights).

In sum, even BD’s improper exhibits cannot save its SAC.

V. CONCLUSION

The Court should dismiss BD’s fifth and eighth claims for breach of contract and copyright

infringement. If the Court determines BD has stated a copyright claim, it should still dismiss BD’s

request for statutory damages, attorneys’ fees, profits, and injunctive relief under the Copyright Act.13

Dated: February 3, 2020 COOLEY LLP STEVEN C. NEAL (170085) MARTIN S. SCHENKER (109828) JEFFREY S. KARR (186372) ADAM S. GERSHENSON (pro hac vice) DANE R. VORIS (281051) MATTHEW E. BUCCELLATO (296079)

/s/ Jeffrey S. Karr Jeffrey S. Karr (186372) Attorneys for Defendant and Counterclaimant Cytek Biosciences Inc.

13 BD claims that Cytek’s motion does not challenge BD’s “original” claims for breach of contract,

inducing breach of contract, and unfair competition. (Opp’n at 1 n.1.) BD’s “original” claim for breach

of contract (now BD’s Fourth Claim for Relief) is not asserted against Cytek. (SAC ¶¶ 235–44.)

Further, this Court already dismissed BD’s inducement and unfair-competition claims (now BD’s

Sixth and Seventh Causes of Action, respectively) against Cytek, which BD did not amend through

the SAC. (Mot. at 4 n.1.) To the extent BD contends these claims are reasserted by the SAC, they

should be dismissed for the same reasons as in August 2018. (Id.; ECF No. 65.)

Case 3:18-cv-00933-MMC Document 160 Filed 02/03/20 Page 21 of 21


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