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					                     UNITED STATES DISTRICT COURT
                      EASTERN DISTRICT OF TEXAS
                          MARSHALL DIVISION


VARIANT HOLDINGS, LLC AND
VARIANT, INC.
     Plaintiffs,

     v.

HILTON HOTELS HOLDINGS LLC;
ACCOR NORTH AMERICA, INC. D/B/A
MOTEL 6 D/B/A STUDIO 6 D/B/A
NOVOTEL HOTELS; ALAMO RENT A
CAR, LLC; BAYMONT FRANCHISE
SYSTEMS, INC. D/B/A BAYMONT INN &
SUITES; BENCHMARK HOSPITALITY
INTERNATIONAL D/B/A HOTEL
CONTESSA; DAYS INNS WORLDWIDE,
INC.; DOLLAR RENT A CAR, INC.;
DOLLAR THRIFTY AUTOMOTIVE
GROUP, INC.; ENTERPRISE HOLDINGS,
INC.; ENTERPRISE RENT-A-CAR CO.;
FERTITTA HOSPITALITY, INC. D/B/A
HILTON GALVESTON ISLAND RESORT;      Civil Action No.:   2:11-cv-00427
HAWTHORN SUITES FRANCHISING,
INC.; HILTON GOLBAL HOLDINGS LLC;
HILTON WORLDWIDE HOLDINGS, INC.;
HILTON WORLDWIDE, INC. F/K/A
HILTON HOTELS CORP. D/B/A CONRAD
HOTELS & RESORTS D/B/A
DOUBLETREE BY HILTON D/B/A
EMBASSY SUITES HOTELS D/B/A
HAMPTON INN D/B/A HAMPTON INN &
SUITES D/B/A HILTON HOTELS &
RESORTS D/B/A HILTON GARDEN INN
D/B/A HOME2 SUITES BY HILTON D/B/A
HOMEWOOD SUITES BY HILTON D/B/A
WALDORF ASTORIA HOTELS &
RESORTS D/B/A HILTON GRAND
VACATIONS; HOWARD JOHNSON
INTERNATIONAL, INC.; HYATT
CORPORATION; HYATT HOTELS
CORPORATION D/B/A PARK HYATT
D/B/A ANDAZ D/B/A GRAND HYATT
HOTELS D/B/A HYATT REGENCY
HOTELS D/B/A HYATT SUMMERFIELD
SUITES D/B/A HYATT RESORTS D/B/A
HYATT VACATION CLUB; HYATT
HOTELS MANAGEMENT
CORPORATION; HYATT PLACE
FRANCHISING, L.L.C.; KNIGHTS
FRANCHISE SYSTEMS, INC. D/B/A
KNIGHTS INN; MICROTEL INNS AND
SUITES FRANCHISING, INC. D/B/A
MICROTEL INN & SUITES; NATIONAL
CAR RENTAL SYSTEM, INC.; NORTH
AMERICA SOFITEL CORP.; OMNI
HOTELS CORP.; PAYLESS RENTAL CAR
SYSTEM, INC.; RAMADA WORLDWIDE
INC.; RED LION HOTELS CORP.; RED
LION HOTELS HOLDINGS, INC.; RED
LION HOTELS MANAGEMENT, INC.;
RED LION PROPERTIES, INC.; SELECT
HOTELS GROUP, L.L.C D/B/A HYATT
PLACE; SUPER 8 WORLDWIDE, INC.;
THRIFTY, INC. D/B/A THRIFTY CAR
RENTAL; TRAVELODGE HOTELS, INC.;
TRT DEVELOPMENT CO.; TRT
HOLDINGS, INC.; TRYP HOTELS
WORLDWIDE, INC.; U.S. FRANCHISE
SYSTEMS, INC.; VANGUARD CAR
RENTAL USA, LLC D/B/A ALAMA RENT
A CAR D/B/A NATIONAL CAR RENTAL;
WESTHEIMER HOTEL LP D/B/A HOTEL
DEREK; WINGATE INNS
INTERNATIONAL, INC.; WYNDHAM
HOTEL GROUP, LLC; WYNDHAM
HOTELS AND RESORTS, LLC;
WYNDHAM VACATION RESORTS, INC.
and WYNDHAM WORLDWIDE CORP.
       Defendants.


   DEFENDANTS HYATT CORP., HYATT HOTELS CORP., HYATT HOTELS
 MANAGEMENT CORPORATION, HYATT PLACE FRANCHISING, L.L.C., AND
SELECT HOTELS GROUP, L.L.C.’S MOTION TO DISMISS PLAINTIFFS VARIANT
       HOLDINGS, LLC AND VARIANT, INC.’S COMPLAINT UNDER
           RULE 12(B)(6) FOR FAILURE TO STATE A CLAIM




                                    2
          Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants Hyatt Corp., Hyatt

Hotels Corp., Hyatt Hotels Management Corporation, Hyatt Place Franchising, L.L.C., and

Select Hotels Group, L.L.C. (collectively “Hyatt” or the “Hyatt entities”) move to dismiss

Plaintiffs Variant Holdings, LLC and Variant, Inc.’s (collectively “Variant”) complaint for

failure to state a claim upon which relief can be granted. As permitted by Rule 12(b), Hyatt files

this pre-answer motion without waiving its right to answer or otherwise respond to the

allegations in Variant’s Complaint.

          Variant’s Complaint is woefully deficient, not only in form but also in substance. The

Complaint lumps together fifty-three defendants and asserts no more than threadbare recitals

using formulaic language of alleged infringement by a collective group of Defendants in a clear

attempt to (a) avoid jurisdictional issues and (b) “rush to the courthouse” before the effective

date of the America Invents Act. By failing to specifically plead details about the defendants,

failing to identify any accused products, failing to allege any infringing acts, and failing to

factually support how Hyatt might have infringed, Variant has failed to place Hyatt on notice of

the claims against which it must defend. Even under the liberal pleading requirements set forth

by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), Variant’s Complaint cannot pass muster. In view of

these deficiencies, the Court should dismiss Variant’s Complaint.


I.        FACTUAL BACKGROUND

          Variant rushed to file its Complaint in this action on September 15, 2011—on the eve of

the historic enactment of the Leahy-Smith America Invents Act, Pub. L. 112-29, 125 Stat. 284

(Sept. 16, 2011) (codified as amended at various sections of title 35 of the U.S. Code).1


1    The America Invents Act (the “AIA”) made sweeping changes to U.S. Patent laws. See

                                                  3
Variant’s Complaint names fifty-three defendants in the caption and then proceeds to treat them

collectively as a single entity - “the Defendants.” Yet, even a cursory review of the caption

confirms that these defendants are multiple unrelated entities, some of which are competitors and

some of which are in entirely different business lines. There is no allegation that ties these

entities together or justifies treating them as the single entity this Complaint attempts to do.

       In fact, under the section of the Complaint entitled “PARTIES,” there are no factual

allegations with respect to any of the defendants to even justify this Court having jurisdiction

over any of the defendants. The Complaint lacks even minimal information such as the name of

the defendant, the state of incorporation, or the principal place of business. (See Dkt. No. 1 at p.

4).

       The Complaint merely alleges that that the Defendants infringe U.S. Pat. No. 7,624,044

(the “’044 Patent”). And, the entirety of Variant’s infringement allegation against all Defendants

– there is no separately pled allegation against Hyatt or any other defendant — is contained in a

single conclusory paragraph. (Dkt. No. 1, ¶ 9). Variant’s Complaint contains no additional

allegations, and pleads no additional facts. (See Dkt. No. 1, ¶¶ 10-12).


II.    STATEMENT OF THE RELEVANT LAW

       Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a claim if the plaintiff fails

“to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule

 generally, Leahy-Smith America Invents Act Implementation, U.S. Patent & Trademark Office,
 http://www.uspto.gov/aia_implementation/index.jsp (last updated Nov. 5, 2011). Among other
 modifications that became effective on September 16, 2011, the AIA added § 299 – Joinder of
 Parties. This section prohibits joinder of unrelated co-defendants in an action for patent
 infringement. 35 U.S.C.A. § 299 (West 2011). As of September 16, 2011, joinder of unrelated
 co-defendants is allowed only where the claim for infringement arises out of the same
 transaction or occurrence and has a common set of facts for all co-defendants. Id. Allegations
 that multiple accused infringers have each infringed the patent or patents in suit is insufficient
 for joinder. Id.


                                                  4
12(b)(6), a claim may be dismissed when a plaintiff fails to allege any set of facts in support of

his claim which would entitle him to relief.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378

(5th Cir.2002). “[A] claim for relief must contain a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

129 S. Ct. at 1949. A complaint under Rule 8 “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action elements will not do.” Twombly, 550

U.S. at 555.

       Similarly, a complaint fails to satisfy Rule 8 where it proffers only naked assertions

devoid of further factual enhancement. Iqbal, 129 S. Ct. 1949 (citing Twombly, 550 U.S. at 557).

Only facts—if pleaded and pleaded well—are accepted as true, but bare legal conclusions,

unwarranted inferences, or mere arguments are not entitled to an assumption of truth. Iqbal, 129

S. Ct. at 1949. Legal conclusions must be supported by factual allegations in order to nudge the

claims from merely conceivable to plausible. Twombly, 550 U.S. at 547. Lacking factual

enhancement, a complaint fails to provide the required notice of the grounds for entitlement to

relief. McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1357 (Fed. Cir. 2007).


III.   ARGUMENT

       A.      The Complaint Fails To Allege A Sufficient Jurisdictional Basis

       The Complaint contains only jurisdictional allegations with respect to Variant. There are

no allegations with respect to state of incorporation or the principal place of business of the

various Hyatt entities named as defendants. Thus, there are no allegations in the Complaint upon

which this Court can determine that it has personal jurisdiction over each Hyatt entity. The

Complaint is silent on these details with respect to the other defendants as well.



                                                  5
       This appears to be yet another case where a non-practicing entity is attempting to haul

multiple, unrelated foreign defendants into a forum that has minimal or no ties to the cause of

action or the defendants. Yet, on the allegations pled there is no basis for this Court to conclude

that it has personal jurisdiction over any Hyatt entity, and with the lack of allegations concerning

the alleged infringement, it is premature to even begin to assess whether this Court is a

convenient forum for this action. See In re Volkswagen of Am., Inc., 545 F.3d 304, 316 (5th Cir.

2008) (en banc). For this reason alone, the Complaint should be dismissed. Yet there are

multiple, other deficiencies with this Complaint.


       B.      Variant Fails to Provide Hyatt with Adequate Notice of the Claims Against
               Which It Must Defend

       Variant also failed to adequately plead a plausible claim of infringement against any

system, product, device, or method of Hyatt’s. A patentee must plead facts sufficient to place the

alleged infringer on notice as to what he must defend. McZeal, 501 F.3d at 1357. Vague, bare,

or merely formulaic assertions provide no notice to the party as to what it must defend against.

Twombly, 550 U.S. at 555. Variant has failed to plead a single fact with respect to Hyatt.

Variant’s lone infringement allegation is nothing more than a recitation of formulaic language

from the patent statute language (“through actions comprising the making, using, selling and/or

offer for sale”) combined with a paraphrase of claim language. (Compare Dkt. No. 1, ¶19 with

’044 claim 14). And, again, the allegation is not specific to Hyatt. Rather, Variant’s allegation

with respect to all Defendants that: the “apparatuses comprise the Defendants’ websites for

hotels and/or vehicles,” is not supported by any facts, is inconsequential, and cannot save its

complaint.

       This type of allegation fails to satisfy Rule 11, let alone the pleading standards of

Twombly. Is it possible that Variant does not know whether the accused websites are offering


                                                 6
hotels or vehicles or both? At least some due diligence should have been conducted before this

lawsuit was filed.2 If so, there should have been analysis of the website or websites being

accused, the claims being asserted and the allegedly infringing activity. The law does not require

Hyatt to guess as to the alleged infringement. This is especially true in the current context,

where Hyatt is a large corporate enterprise with a complex web-based infrastructure. As one

court has aptly described, the need to consider context is relevant when evaluating the

sufficiency of a pleading:

          [W]hen the plaintiff is asserting a patent with a single claim against a defendant
          that makes or sells a single accused device, additional detail is not necessary. . . . .
          However, when the patent includes multiple claims and the defendant
          manufactures and sells multiple accused products, it does not give the defendant
          adequate notice simply to allege that some unidentified product of the defendant
          infringed some unidentified claim.

Hunts Point Ventures, Inc. v. Digecor, Inc., No 11-cv-319, slip op. at 5 (W.D. Wisc. Aug. 24,

2011) (attached hereto as Ex. 1); accord. Realtime Data, LLC v. Stanley, 721 F. Supp. 2d 538,

538–40 (E.D. Tex. 2010) (noting this context specific analysis may result in different

requirements for different allegations of infringement).

          At a minimum, the pleading requirements demand that Variant notify Hyatt as to which

website (or feature of the website) allegedly infringes the patent-in-suit and provide sufficient

factual information such that Hyatt can identify the accused products/system. Judicial

experience and common sense often require a plaintiff to identify the defendant’s specific

product in the complaint. E.g. Realtime Data, 721 F. Supp. 2d at 539; Bender v. LG Elec. U.S.A.

Inc., No. C 09-02114 JF, 2010 WL 889541 at *3 (N.D. Cal. Mar. 11, 2010) (attached hereto as

Ex. 2); cf. Webvention LLC v. Adidas Am., No. 10-cv-410, slip op. at 4 (E.D. Tex. July 20, 2011)

2   In the case of accused patent infringement, courts have high expectations of a plaintiff’s
    preparedness before it brings suit. See, e.g., Am. Video Graphics, L.P. v. Elec. Arts, Inc., 359 F.
    Supp. 2d 558, 560 (E.D. Tex. 2005).


                                                     7
(noting that by naming the defendant’s specific website address, plaintiff adequately identified

the product) (attached hereto as Ex. 3). Additionally, when a complaint names multiple

defendants, a plaintiff should separately list each defendant’s allegedly infringing product. E.g.,

Landmark Tech. LLC v. Aeropostale, No. 09-cv-262, slip op. at 5 (E.D. Tex. Mar. 29, 2010)

(noting the plaintiff’s failure to separately list each defendant’s products) (attached hereto as Ex.

4). Variant’s factually deficient Complaint has not provided any context for this Court to

evaluate the plausibility of Variant’s claim against the Hyatt entities.

        C.        The Court Should Dismiss Variant’s Complaint And Require It To Comply
                  With The New Provisions Of 35 U.S.C. § 299

        Variant’s Complaint was a half-hearted, perfunctory attempt to institute an action in

advance of the reformed patent statute. Variant’s decision to rush to the courthouse in an effort

to circumvent Congress’ intent should not be rewarded with a second bite at the apple. Variant

had its opportunity. Having failed to satisfy even the most lenient pleading standard, the Court

should dismiss Variant’s Complaint against Hyatt, and require it to comply with the new joinder

provisions of the patent statute that became effective on September 16, 2011. Requiring a

plaintiff to comply with the newly enacted provisions of the patent statutes is not new. See, e.g.,

Kilts Res. LLC v. Uniden Direct In USA, Inc, No. 10-cv-517 (E.D. Tex. Sept. 19, 2011)

(dismissing a false marking case and requiring the plaintiff to comply with the newly amended

provision of the patent statute that became effective on September 16, 2011) (attached hereto as

Ex. 5). Only with such a Complaint on file, can the parties and the Court adequately assess

whether this is the appropriate forum for an alleged infringement action asserted against the

Hyatt entities.




                                                  8
IV.    CONCLUSION

       Variant’s lack of jurisdictional allegations and its vague and unspecific allegations of

infringement do not comply with this Court’s pleading requirements. By failing to identify any

of Hyatt’s products, failing to assert any facts specifically related to Hyatt, and failing to specify

more than a generic recitation of infringement against Hyatt, Variant’s complaint cannot possibly

(let alone plausibly) pass the Rule 8 pleading standards, and should therefore be dismissed.



Date: November 29, 2011                       Respectfully submitted,
                                                /s/ David P. Lindner
                                              Laura Beth Miller (Admitted Pro Hac Vice)
                                              Illinois Bar No.: 6191408
                                              lmiller@usebrinks.com
                                              David P. Lindner (Admitted Pro Hac Vice)
                                              Illinois Bar No.: 6283382
                                              dlindner@usebrinks.com
                                              Joseph S. Hanasz (Admitted Pro Hac Vice)
                                              Illinois Bar No.: 6292951
                                              jhanasz@usebrinks.com

                                              BRINKS HOFER GILSON & LIONE
                                              NBC Tower – Suite 3600
                                              455 N. Cityfront Plaza Dr.
                                              Chicago, Illinois 60611
                                              Telephone: (312) 321-4200
                                              Facsimile: (312) 321-4299

                                              Attorneys for Defendants
                                              Hyatt Corp., Hyatt Hotels Corp.,
                                              Hyatt Hotels Management Corp.,
                                              Hyatt Place Franchising, L.L.C., and
                                              Select Hotels Group, L.L.C.




                                                  9
                                 CERTIFICATE OF SERVICE

       I hereby certify that on the 29th day of November, 2011, I electronically filed the

foregoing document and exhibits with the Clerk of Court using the CM/ECF system, which

transmits a notification of such filing (NEF) to all counsel of record.

       I further certify that on the 29th of November, 2011, copies of the foregoing document

and exhibits were mailed via the United States Postal Service, first class postage prepaid, to the

following:

Alamo Rent a Car, LLC
c/o Greg Stubblefield – President
600 Corporate Park Drive
Saint Louis, Missouri 63105

Fertitta Hospitality, Inc. d/b/a Hilton Galveston Island Resort
c/o Steven L. Scheinthal – Registered Agent
1400 Post Oak Boulevard, Suite 1010
Houston, Texas 77056

National Car Rental System, Inc.
c/o Greg Stubblefield – President
6929 North Lakewood Avenue, Suite 100
Tulsa, Oklahoma 74117




                                                   /s/ David P. Lindner
                                                   David P. Lindner

				
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