Lattice Technologies LLC v. BH Security, LLC

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LATTICE TECHNOLOGIES, LLC, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:25-cv-109-L-BN
§
BH SECURITY, LLC, 	§
§
Defendant. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Plaintiff Lattice Technologies, LLC filed a complaint for patent infringement
against Defendant BH Security, LLC [Dkt. No. 1] alleging that BH Security has
infringed directly or indirectly one or more claims of a patent assigned to Lattice:
United States Patent No. 8,098,153 (the “‘153 Patent”) “entitled ‘System and method
of providing emergency response to a user carrying a user device,’” id., ¶ 9; Dkt. No.
1-1.
United States District Judge Sam A. Lindsay referred this lawsuit to the
undersigned United States magistrate judge for pretrial management under 28
U.S.C. § 636(b). See Dkt. No. 7.
BH Security has moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6). See Dkt. No. 12. Lattice responded. See Dkt. No. 18. And BH
Security replied. See Dkt. No. 19.
And the undersigned recommends that the Court grant the motion and dismiss
the complaint with prejudice.
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Legal Standards
While “[i]ssues that are unique to patent law are governed by Federal Circuit
precedent,” because courts “apply the law of the regional circuit when deciding
whether to grant a motion to dismiss under Rule 12(b)(6) in a patent case,” the Court
should analyze the motion to dismiss based on “Fifth Circuit and [United States]
Supreme Court authority.” Lemko Corp. v. Microsoft Corp., No. 3:22-cv-363-L-BT,
2024 WL 3798217, at *3 (N.D. Tex. July 29, 2024) (citations omitted), rec. accepted,
2024 WL 3806350 (N.D. Tex. Aug. 13, 2024).
Under this authority, a motion under Rule 12(b)(6) is “not meant to resolve
disputed facts or test the merits of a lawsuit” but “instead must show that, even in
the plaintiff’s best-case scenario, the complaint does not state a plausible case for
relief.” Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 581 (5th Cir. 2020).
Considering such a motion, the Court “accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007).
Even so, a plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face” and must plead those facts with enough specificity “to raise a
right to relief above the speculative level” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 555 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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So a court’s “obligation [is] to accept [the] complaint’s factual allegations as
true and assess whether those facts permit a reasonable inference that [a defendant]
is liable.” Sewell, 974 F.3d at 581; cf. Bryant v. Ditech Fin., L.L.C., No. 23-10416, 2024
WL 890122, at *3 (5th Cir. Mar. 1, 2024) (“[J]ust as plaintiffs cannot state a claim
using speculation, defendants cannot defeat plausible inferences using speculation.”).
This “plausibility standard is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678.
So, “[w]here a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and plausibility of
entitlement to relief.” Id. (cleaned up; quoting Twombly, 550 U.S. at 557); see, e.g.,
Parker v. Landry, 935 F.3d 9, 17 (1st Cir. 2019) (Where “a complaint reveals random
puffs of smoke but nothing resembling real signs of fire, the plausibility standard is
not satisfied.”).
And, while Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed
factual allegations, it does require that a plaintiff allege more than labels and
conclusions. So, while a court must accept a plaintiff’s factual allegations as true, it
is “not bound to accept as true a legal conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Consequently, a threadbare or formulaic recitation of the elements of a cause
of 	action, 	supported 	by 	mere 	conclusory 	statements, 	will 	not 	suffice. 	See 	id.;
Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023) (“[T]he court does not ‘presume
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true a number of categories of statements, including legal conclusions; mere labels;
threadbare recitals of the elements of a cause of action; conclusory statements; and
naked assertions devoid of further factual enhancement.’” (quoting Harmon v. City of
Arlington, Tex., 16 F.4th 1159, 1162-63 (5th Cir. 2021))).
Summed up, “to survive” dismissal under Twombly and Iqbal, plaintiffs must
“plead 	facts 	sufficient 	to 	show” 	that 	the 	claims 	asserted 	have 	“substantive
plausibility” by stating “simply, concisely, and directly events” that they contend
entitle them to relief. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per
curiam) (citing FED . R. CIV. P. 8(a)(2)-(3), (d)(1), (e)).
Aside from “matters of which judicial notice may be taken under Federal Rule
of Evidence 201,” Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d
890, 900 (5th Cir. 2019) (citations omitted), a court cannot look beyond the pleadings
in deciding a Rule 12(b)(6) motion, see Spivey v. Robertson, 197 F.3d 772, 774 (5th
Cir. 1999); see also Basic Capital Mgmt., Inc. v. Dynex Capital, Inc., 976 F.3d 585,
589 (5th Cir. 2020) (Federal Rule of Evidence 201(d) “expressly provides that a court
‘may take judicial notice at any stage of the proceeding,’ and our precedents confirm
judicially noticed facts may be considered in ruling on a 12(b)(6) motion.” (citations
omitted)).
For example, when reviewing motions to dismiss in patent infringement cases,
it is proper to “take judicial notice of information found on agency websites,” and such
information could include a patent’s prosecution history. ZitoVault, LLC v. Int’l Bus.
Machs. Corp., No. 3:16-cv-962-M, 2018 WL 2971131, at *2 n.4 (N.D. Tex. Mar. 29,
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2018) (“Plaintiff’s exhibits from the prosecution history of IBM’s patent are all
available from the U.S. Patent and Trademark Office’s website, at www.uspto.gov.
The Court accordingly takes judicial notice of the prosecution history.”).
Pleadings in the Rule 12(b)(6) context include attachments to the complaint.
In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007); see also Gill
as Next Friend of K.C.R. v. Judd, 941 F.3d 504, 511 (11th Cir. 2019) (“The Civil Rules
provide that an attachment to a complaint generally becomes ‘part of the pleading for
all purposes,’ including for ruling on a motion to dismiss.” (quoting FED . R. CIV. P.
10(c); citations omitted)).
And, “[w]hen an allegation is contradicted by the contents of an exhibit
attached to the pleading,” “the exhibit and not the allegation controls.” Rogers v. City
of Yoakrum, 660 F. App’x 279, 285 n.6 (5th Cir. 2016) (per curiam) (cleaned up;
quoting United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377
(5th Cir. 2004) (citing Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th
Cir. 1940))).
Documents “attache[d] to a motion to dismiss are considered to be part of the
pleadings, if they are referred to in the plaintiff’s complaint and are central to her
claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)
(quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.
1993)).
And, while the United States Court of Appeals for the Fifth Circuit “has not
articulated a test for determining when a document is central to a plaintiff’s claims,
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the case law suggests that documents are central when they are necessary to
establish an element of one of the plaintiff’s claims. Thus, when a plaintiff’s claim is
based on the terms of a contract, the documents constituting the contract are central
to the plaintiff’s claim.” Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D.
Tex. 2011).
But, “if a document referenced in the plaintiff’s complaint is merely evidence
of an element of the plaintiff’s claim, then the court may not incorporate it into the
complaint.” Id.
Analysis
Lattice is correct that the Court may consider the claim chart attached to its
complaint [Dkt. No. 1-2] to determine the plausibility of its infringement allegations.
See Katrina, 495 F.3d at 205; Gill, 941 F.3d at 511.
That chart, limited to one method claim, applies “publicly available evidence”
from BH Security’s website “to the claim elements.” Bot M8 LLC v. Sony Corp. of Am.,
4 F.4th 1342, 1353 (Fed. Cir. 2021) (cleaned up); see generally Dkt. No. 1-2.
Absent that chart, Lattice’s complaint is limited to “conclusory statements”
and “naked assertions” that the Court may not “presume [to be] true,” Armstrong, 60
F.4th at 269 (cleaned up); see Dkt. No. 1 at 1-5.
So, to determine if Lattice’s factual content allows for a reasonable inference
that 	BH 	Security 	has 	infringed 	the 	‘153 	Patent 	(directly 	or 	indirectly), 	the
undersigned will focus on the claim chart, keeping in mind that “[d]irect infringement
requires a party to perform or use each and every step or element of a claimed method
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or product,” and, so, “[f]or process patent or method patent claims, infringement
occurs when a party performs all of the steps of the process.” BMC Res., Inc. v.
Paymentech, L.P., 498 F.3d 1373, 1378-79 (Fed. Cir. 2007) (citations omitted),
overruled on other grounds by Akamai Techs., Inc. v. Limelight Networks, Inc., 797
F.3d 1020 (Fed. Cir. 2015) (en banc).
BH Security argues in part that
[t]he most glaring deficiencies in Plaintiff’s claim chart arise with
respect 	to two 	separate 	limitations 	in 	Claim 	1 	that 	each 	require
“automatically establishing communication” with contacts. Dkt. 1 Ex. 1,
Claim 1. Plaintiff’s attached claim chart fails to plausibly allege that BH
Security 	meets 	either 	of 	these 	limitations. 	The 	only 	mention 	of
“automatically” establishing communication in Plaintiff’s claim chart
appears in the first sentence of each limitation and merely parrots the
claim language itself without ever actually alleging that BH Security
performs 	this 	claim 	step. 	Plaintiff’s 	chart 	otherwise 	ignores 	this
requirement for “automatically” establishing communication, failing to
plausibly allege that that BH Security establishes communications with
the contacts automatically.
Dkt. No. 12 at 13 (cleaned up).
BH Security continues: “Rather than establish communication with contacts
automatically, BH Security does the opposite – a live operator manually calling if
needed only after the operator manually reviews certain information. Plaintiff’s claim
chart effectively concedes this operation by citing to many instances of BH Security
statements regarding the manual operation of its system.” Id. at 14 (cleaned up).
And BH Security concludes: “Thus, Plaintiff not only does not – it cannot –
allege that BH Security establishes communication with contacts automatically. BH
Security’s monitoring centers work the opposite way. BH Security’s monitoring
centers are staffed by live operators who, in response to alerts, decide whether to
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make outbound calls after reviewing certain information and then manually make
those calls. Nothing in Plaintiff’s claim chart suggests otherwise. Plaintiff accordingly
fails to state a plausible claim of infringement for the two ‘automatically establishing
communication’ limitations.” Id. at 15 (cleaned up).
Lattice responds that, as to these arguments for Rule 12(b)(6) dismissal,
“[w]hat BH Security really raises is an improper factual dispute, simply denying that
its call centers place calls ‘automatically.’ This is precisely the type of factual dispute
that cannot be resolved on a motion to dismiss.” Dkt. No. 18 at 4-5 (cleaned up).
Lattices continues: “BH Security’s position would be subject to discovery and could be
relevant to its non-infringement defense, but it has nothing to do with whether
Plaintiff has sufficiently alleged infringement.” Id. at 5. And, so, according to Lattice,
“[t]he claim chart attached to the Complaint contains detailed factual allegations
that, when taken as true, establish a plausible claim for direct infringement.” Id.
The undersigned cannot agree with Lattice’s assertions.
Lattice stakes the plausibility of its infringement allegations on screenshots
from BH Security’s publicly available website that are incorporated into an exhibit to
the complaint. And, insofar as the content of that exhibit contradicts an allegation,
“then indeed the exhibit and not the allegation controls.” Riley, 355 F.3d at 377. And
that content – those statements on BH Security’s website, describing how its system
operates – directly contradicts a required step in the process for alleging infringement
of 	the 	method 	patent 	here: 	“automatically 	establishing 	communication” 	with
contacts. See, e.g., Dkt. No. 1-2 at 45 & 51 (alleging that BH Security’s “automatically
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establishing communication with one of the contacts” (and thus its infringement of
the patent) has been alleged through a website screenshot reflecting BH Security
employees “review the information” sent “[w]hen your alarm system is triggered” and,
if needed, will “call the police, fire department, or EMT”).
And, so, the Court is not facing a question of “disputed facts” that it cannot
“resolve” at the pleadings stage. Sewell, 974 F.3d at 581.
Instead, Lattice has presented the Court with allegations (again, the content
of an exhibit attached to its complaint) that “renders [its] infringement claim not even
possible, much less plausible.” Bot M8 LLC, 4 F.4th at 1354 (“Under Iqbal/Twombly,
allegations that are ‘merely consistent with’ infringement are insufficient. Where, as
here, 	the 	factual 	allegations 	are 	actually 	inconsistent 	with 	and 	contradict
infringement, they are likewise insufficient to state a plausible claim. As we have
said before, while a plaintiff’s pleading obligations are not onerous, it is possible that,
in pleading its claims, a plaintiff may find it has pleaded itself out of court.” (cleaned
up)).
And, where “direct infringement claims are insufficient as pleaded,” “indirect
infringement claims also fail.” Lemko Corp. v. Microsoft Corp., No. 3:22-cv-363-L,
2023 WL 11944548, at *8 (N.D. Tex. Sept. 28, 2023); see also Lemko, 2024 WL
3798217, 	at 	*6 	(“Indirect 	infringement, 	whether 	inducement 	to 	infringe 	or
contributory infringement, can only arise in the presence of direct infringement.”
(citing Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1272 (Fed. Cir.
2004); In re Bill of Lading, 681 F.3d 1323, 1333 (Fed. Cir. 2012))).
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The motion to dismiss should therefore be granted in full.
And, while Lattice requested leave to amend in its response to the motion to
dismiss, see Dkt. No. 18 at 6, it failed to explain how it would amend its allegations
to cure the defects cited in BH Security’s motion, which the undersigned agrees
render Lattice’s infringement claims not plausible, cf. Scott v. U.S. Bank Nat’l Ass’n,
16 F.4th 1204, 1209 (5th Cir. 2021) (per curiam) (“A court should freely give leave to
amend when justice so requires, but a movant must give the court at least some notice
of what his or her amendments would be and how those amendments would cure the
initial complaint’s defects. If the plaintiff does not provide a copy of the amended
complaint nor explain how the defects could be cured, a district court may deny leave.”
(citations omitted)).
And, even though Federal Rule of Civil Procedure 15 requires that leave to
amend be granted freely “when justice so requires,” FED . R. C IV. P. 15(a)(2), and thus
provides a “strong presumption in favor of granting leave to amend,” Fin. Acquisition
Partners, LP v. Blackwell, 440 F.3d 278, 291 (5th Cir. 2006), “a district court need not
grant a [request] to amend if doing so would be an exercise in futility,” Allen v. Navy
Fed. Credit Union, No. 3:24-cv-949-L-BN, 2025 WL 484818, at *13 (N.D. Tex. Feb. 13,
2025) (citations omitted).
And, so, for the reasons set out above, the undersigned finds that Lattice’s
effectively pleading itself out of court amounts to “a substantial reason to deny leave
to amend,” Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. Nov. 1981),
and recommends that the Court dismiss Lattice’s complaint with prejudice.
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Recommendation
The Court should grant Defendant BH Security, LLC’s motion to dismiss [Dkt.
No. 12] and dismiss with prejudice Plaintiff Lattice Technologies LLC’s complaint
[Dkt. No. 1].
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED . R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: December 19, 2025
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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