Match Group, LLC v. Bumble Trading Inc.

Western District of Texas, txwd-6:2018-cv-00080

REPLY to Response to Motion, filed by Bumble Trading Inc., re {{23}} MOTION to Dismiss Match Group First Amended Complaint filed by Defendant Bumble Trading Inc.

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6 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION MATCH GROUP, LLC, Plaintiff, Case No.: 6:18-cv-00080-ADA-JCM vs. JURY TRIAL BUMBLE TRADING, INC., Defendant. DEFENDANT BUMBLE TRADING INC.'S REPLY BRIEF IN FURTHER SUPPORT OF ITS MOTION TO DISMISS MATCH GROUP, LLC'S FIRST AMENDED COMPLAINT 6 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. THE '023 AND '811 PATENTS ARE DIRECTED TO UNPATENTABLE SUBJECT MATTER ......................................................................................................... 1 A. The '023 and '811 Patents Are Directed to Abstract Ideas ................................... 1 1. The Cases Match Relies on are Inapposite ................................................ 4 B. The '811 and '023 Patents Do Not Recite an Inventive Concept .......................... 8 III. THE COURT SHOULD DISMISS MATCH'S TRADE SECRET CLAIM .................... 9 A. Match's Opposition Does Not Remedy the FAC's Failure to Plead Requisite Components of Trade Secret Misappropriation ..................................... 9 B. Bumble Has Established a Limitations Defense .................................................. 10 IV. CONCLUSION ................................................................................................................ 10 -i- 6 TABLE OF AUTHORITIES Page CASES Aatrix Software Inc. v. Green Shades Software Inc., 882 F.3d 1121 (Fed. Cir. 2018)................................................................................................... 8 Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354 (Fed. Cir. 2018)................................................................................................... 9 Aatrix Software, Inc. v. Green Shades Software, Inc., No. 3:15-164, 2016 WL 8578448 (M.D. Fla. Apr. 26, 2016)..................................................... 8 Affinity Labs of Texas LLC v. Direct TV LLC, 838 F.3d 1253 (Fed. Cir. 2016)................................................................................................... 4 Align Tech. v. 3Shape A/S, No. 17-1646, 2018 WL 4275632 (D. Del. Sept. 7, 2018) ........................................................... 2 Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229 (Fed. Cir. 2016)................................................................................................... 2 Briskin v. Ernst & Ernst, 589 F.2d 1363 (9th Cir. 1978) .................................................................................................. 10 Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018)............................................................................................... 5, 7 Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044 (Fed. Cir. 2017)........................................................................................... 3, 4, 7 Data Engine Techs. LLC v. Google LLC, No. 2017-1135, 2018 U.S. App. LEXIS 28412, -- F.3d -- (Fed. Cir. Oct. 9, 2018) ........... 5, 6, 7 Doe v. Robertson, 751 F.3d 383 (2014) .................................................................................................................... 9 EMG Tech., LLC v. Etsy, Inc., No. 6:16-484, 2017 WL 780648 (E.D. Tex. Mar. 1, 2017) ........................................................ 2 Finite State Machine Labs, Inc. v. Spectracom Corp., No. 17-1040, 2018 WL 4171503 (W.D. Tex. Aug. 30, 2018) .................................................... 9 HT Res., Inc. v. Ralston, No. 1:17-350, 2017 WL 7921242 (W.D. Tex. Dec. 7, 2017) ................................................... 10 -i- 6 TABLE OF AUTHORITIES (continued) Page Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714 (7th Cir. 2003) .................................................................................................... 10 McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299 (Fed. Cir. 2016)................................................................................................... 4 Move, Inc. v. Real Estate Alliance Ltd., 721 F. Appx. 959 (Fed. Cir. 2018)...................................................................................... 3, 8, 9 OIP Techs. v. Amazon.com, Inc., 788 F.3d 1359 (Fed. Cir. 2015)................................................................................................... 4 P & RO Sols. Grp., Inc. v. CiM Maint., Inc., 273 F. Supp. 3d 699 (E.D. Tex. 2017) ........................................................................................ 2 SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161 (Fed. Cir. 2018)............................................................................................... 1, 3 Symantec Corp. v. Zscaler, Inc., No. 17-cv-04426-JST, 2018 WL 3537201 (N.D. Cal. Jul. 23, 2018) ......................................... 9 Trading Techs. Int'l, Inc. v. CQG, Inc., 675 F. App'x 1001 (Fed. Cir. 2017) ................................................................................... 5, 6, 7 STATUTES 18 U.S.C. § 1839(3) ........................................................................................................................ 9 Tex. Civ. Prac. & Rem. Code § 134A.002(6) ................................................................................. 9 -ii- 6 I. INTRODUCTION The '811 and '023 patents are directed to the abstract ideas of matchmaking and sorting cards. These are not technological problems and the patent specifications do not suggest otherwise. As the patent specifications demonstrate, the claims of the '811 and '023 patents merely implement these abstract concepts by using generic computer functionality and do not recite any inventive concept. Match's utility patent claims fail because the asserted patents are directed to unpatentable subject matter. Match's trade secret claim also fails. It is time barred and deficient because it is based on use of a generic internet-marketing tool that could not plausibly derive independent economic value from not being known. Bumble respectfully requests that this Court dismiss Match's utility patent and trade secret claims with prejudice. II. THE '023 AND '811 PATENTS ARE DIRECTED TO UNPATENTABLE SUBJECT MATTER A. The '023 and '811 Patents Are Directed to Abstract Ideas The Section 101 inquiry is not whether Match's Tinder app has been commercially successful or whether it is innovative. The inquiry is whether the claims of the '811 and '023 patents are directed to patent ineligible subject matter. An innovative abstract idea is still abstract. See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018). The claims of '811 patent are directed to the fundamental economic practice of matchmaking, specifically connecting people with potential matches based on their mutual attraction to each other or not connecting them in the absence of mutual attraction. The claims of the '023 patent are similarly abstract and are merely directed to looking through a stack of dating match profile cards one at a time and expressing interest in a match by moving a card to the right on a generic processing device. Neither of these patents recite patent eligible subject matter. Match tries to muddy the water and recast the claims as patentable technological improvements to a user interface. Not so. Not all claims involving a graphical user interface are 6 patent eligible.1 Where, as here, a claimed user interface does nothing more than implement an abstract idea on a computer, the mere invocation of a user interface and generic computer tools does not render the claim technical and non-abstract. See Apple, 842 F.3d at 1241. The focus of the '811 patent claims is on matchmaking. The graphical user interface elements of the '811 patent are entirely incidental to the abstract subject matter of the claims. Most of the claim limitations in the '811 patent are unrelated to a graphical user interface. (See D.I. 23 at 7-9 (e.g., claim limitations related to receiving online dating profiles, receiving a request for matching, determining a set of potential matches, enabling initial communication, and preventing communication.).) These claim elements are directed to the fundamental economic practice of matchmaking, and do not claim a technical solution to any technical problem. The few elements that are related to a user interface are drafted at a high level of generality. For example, claim 1 of the '811 patent recites "causing the display of a graphical representation of a first potential match of the set of potential matches to the first user on a graphical user interface of the first electronic device." This provides no detail any structure that improves computer technology. In essence, it just claims displaying anything representing a first potential match on an electronic device. The mere invocation of the terms "graphical representation" and "electronic device" does not move this abstract concept into the technical realm. Other claim limitations 1 See, e.g., Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1241-43 (Fed. Cir. 2016) (affirming patent ineligibility of claims directed to the ability to generate graphical user interfaces—menus—with certain features); EMG Tech., LLC v. Etsy, Inc., No. 6:16-484, 2017 WL 780648 at *3 (E.D. Tex. Mar. 1, 2017) (finding claims patent ineligible where the abstract idea was the "simplified interface"); P & RO Sols. Grp., Inc. v. CiM Maint., Inc., 273 F. Supp. 3d 699, 708 (E.D. Tex. 2017) (finding claims directed to a user interface through which users could move and manipulate work schedules patent ineligible); Align Tech. v. 3Shape A/S, No. 17-1646, 2018 WL 4275632, at *13- *15 (D. Del. Sept. 7, 2018) (distinguishing Core Wireless and holding claims including an interactive user display of a patient's teeth as patent ineligible because the claims did not purport to provide a technological improvement to prior systems). -2- 6 related to "graphical representations" are similarly broad and non-specific. The '023 patent claims are directed to looking through a stack of dating match profile cards one at a time and expressing interest in a match by moving a card to the right. The '023 patent merely automates this manual process using a generic computer. This does not constitute a patentable improvement in computer technology. See Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044, 1055 (Fed. Cir. 2017). Like the claims of the '811 patent, the graphical user interface of the '023 patent is described at a high level of abstraction. The only plausible description of the "graphical representation[s]" of "item[s] of information" claimed is that they correspond to "online dating profile[s]" and that they are displayed as "a first card in a stack of cards." This type of description further indicates that the claims are indeed abstract. Match incorrectly suggests that the "swiping to indicate a preference" elements claimed in the '023 and '811 patents turn these claims into non-abstract technical inventions. (See D.I. 30 at 5-6, 9-10, 15.) This is simply leveraging generic, known computer components to implement an abstract idea. Courts often look to the specification to determine to whether the claimed invention improves computer functionality. See Move, Inc. v. Real Estate Alliance Ltd., 721 F. Appx. 959, 956 (Fed. Cir. 2018). Here, the specification demonstrates that swiping is an insignificant extra- solution activity.2 The specification discusses swiping as merely one of many known ways to interact with a computer akin to pressing a button. (See '811 patent at 19:35-383 ("interface 16 may also comprise a touch screen interface operable to detect and receive touch input such as a tap 2 Match suggests that the prosecution history fills this void, but it does not. That the examiner allowed the claims because he did not find certain elements in the prior art does not indicate that these patents are non-abstract or technical solutions to technical problems. See SAP, 898 F.3d at 1163 ("innovation" can be "innovation in ineligible subject matter.") 3 The'811 and '023 patents have identical specifications. For simplicity, only citations to the '811 patent specification are included here. -3- 6 or a swiping gesture").) Notably, the specification discusses pushing a button and swiping as interchangeable. (See id. at 21:27-32 (approval or disapproval can be expressed with a button), 21:63-66 (approval or disapproval can be expressed with right or left swiping gestures), 22:4-8 (a match is created when "both users 14 have expressed a preference for each other's profiles using like button 86 or the swiping gesture associated with like button 86."), 22:37-38; see also Figs. 6- 8 (showing buttons 82 and 86).) That Match chose to limit its claim to the touch screen swiping embodiment rather than the button embodiment does not render the underlying abstract idea any less abstract. See Affinity Labs of Texas LLC v. Direct TV LLC, 838 F.3d 1253, 1259-60 (Fed. Cir. 2016) (limiting an abstract idea to a particular technological environment does not render the claims less abstract). Match's identification of removing an image of one potential match and replacing it with an image of a second potential match "automatically" also fails to provide a basis to render the claims of the '811 and '023 patents non-abstract. (See D.I. 30 at 5-6, 10, 15.) Computer automation is insufficient to render an abstract claim patent eligible.4 Credit Acceptance Corp., 859 F.3d at 1055 ("mere automation of manual processes using generic computers does not constitute a patentable improvement in computer technology"); OIP Techs. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015). Notably, the specification does not once use the term "automatically" or explain how the "automatic" functionality is accomplished. 1. The Cases Match Relies on are Inapposite Match's reliance on Core Wireless, Trading Technologies and Data Engine is 4 Match incorrectly suggests that "Bumble's argument. . . assumes that anything that could be performed by a human is abstract," and offers misplaced reliance on McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299, 1313 (Fed. Cir. 2016). (See D.I. 30 at 10.) Unlike the cases cited by Match that claimed solutions to technological problems in specific ways (and, in the case of McRO, in a way different from the human way), the claims of the '811 and '023 patents merely claim employing an aged old matchmaking strategy and sorting through cards on a computer. -4- 6 misplaced. The claimed interfaces found not to be abstract in those cases bear no resemblance to the purported technology claimed in the asserted patents. See Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018); Trading Techs. Int'l, Inc. v. CQG, Inc., 675 F. App'x 1001 (Fed. Cir. 2017); Data Engine Techs. LLC v. Google LLC, No. 2017-1135, 2018 U.S. App. LEXIS 28412, -- F.3d -- (Fed. Cir. Oct. 9, 2018). Unlike the claims of the '811 and the '023 patents, in each of these three cases, the claimed interface advanced or improved computer technology in a significant way to overcome a problem clearly identified in their respective patent specifications. Core Wireless teaches that at step one of patent eligibility analysis, a court must consider "whether the claims are directed to a specific improvement in the capabilities of computing device, or instead, 'a process that qualifies as an abstract idea for which computers are invoked merely as a tool.'" 880 F.3d at 1361-62. The claims in Core Wireless related to an application summary menu on a computer or cellular phone that had "no analog. . . outside the context of such devices." Id. at 1359-1360. The inventions embodied in the claims overcame technological issues for user interfaces in small devices. Id. at 1362. As disclosed in the relevant patent specification, the claimed interface remedied "many deficits relating to the efficient functioning of the computer, requiring a user … to drill down through many layers to get to desired data or functionality." Id. at 1363. Core Wireless therefore involved a technological solution to a technological problem. In Trading Techs., the patented interface overcame the inability of traders in the financial marketplace to timely execute trading buy/sell decisions in a rapid market environment that fluctuated faster than the execution of a trade on prior art interfaces. 675 F. Appx. at 1002-03. The graphical user interface claimed in the Trading Techs. patents had "no pre-electronic trading analog." Id. at 1004. As disclosed in the relevant patent specification, the claimed interface -5- 6 "'reduce[d] the time it takes for a trader to place a trade when electronically trading on an exchange.'" Id. at 1003. The specific structure of the interface claimed in the Trading Techs. patent "is addressed to and resolves a specifically identified problem in the prior state of the art." Id. at 1004-05. In Data Engine, the patented interface solved a problem that users of 3D spreadsheet had to navigate and "master many complex and arbitrary operations" to move, for example to and from hundreds of spreadsheet. Data Engine, 2018 U.S. App. LEXIS 28412, at *15. Thus, as the court observed, "[t]he method provides a specific solution to then-existing technological problems in computers and prior art electronic spreadsheets." Id.5 In contrast, the interface elements of the '023 and '811 patents do not provide a specific improvement to the capabilities of computing devices but merely leverage those capabilities as a tool. For example, Figures 6-8 of the '023 patent are the disclosures most relevant to the asserted claims, and these embodiments simply use matching server 20 (a generic conventional computer with memory and databases), terminal 10 (personal computer laptop, PDA or any other suitable device) and known touch screen technology and functionality (buttons, swiping or tapping) to describe the display and user interaction of its matchmaking application. In other words, the abstract concepts associated with matchmaking and sorting are applied to the computer environment. There is no disclosure in the specification of the '023 and '811 patents that indicates, in any way, that the patents claim any improvement to any pre-existing capability, or that any of 5 Match suggests that the '023 patent's recitation of "a stack of cards" is similar to the use of "notebook tabs" in Data Engine, (D.I. 30 at 8), but that analogy fails. The claimed tabs in Data Engine solved a technical problem regarding 3D spreadsheet navigation. See Data Engine, 2018 U.S. App. LEXIS 28412, at *2, *8-*10, *15. In contrast, the "stack of cards" claimed in the '023 patent is merely decorative and solves no technical problem. In other words, in Data Engine, "tabs" were used in a new way in 3D spreadsheets to solve a complex problem, while the '023 patent merely claims displaying a conventional stack of cards on a computer. -6- 6 the relevant disclosed embodiments were designed to improve any pre-existing capability of a computing device. Core Wireless, Trading Technologies, Data Engine are further distinguishable from the '811 and '023 patents because the structure of the graphical user interfaces in each of those cases was claimed in great detail.6 See Data Engine, 2018 U.S. App. LEXIS 28412, at *8-*10; Trading Techs., 675 F. App'x at 1003-5; Core Wireless, 880 F.3d at 1359-60. As the Court noted in Trading Techs., the claims at issue there "do not simply claim displaying information on a graphical user interface" but rather "require a specific, structured graphical user interface. . . ." 675 F. App'x at 1004. The specificity in the Core Wireless, Trading Technologies, Data Engine patents are a far cry from the graphical user interface of the'811 and '023 patent claims, which as discussed above, are claimed at a high level of abstraction. The disclosure in the '023 patent that the graphical representation be presented as a "first card of a stack of cards" does not provide the same level of specificity as the Core Wireless, Trading Technologies, Data Engine claims and underscores that all the '023 patent does is automate the manual process of sorting through a stack of cards by leveraging generic computers. See Credit Acceptance Corp., 859 F.3d at 1055. The '811 and '023 patent are directed to the abstract concepts of matchmaking and sorting, requiring the search for an inventive concept as part of Step 2 of the patent eligibility analysis. 6 For example, the Data Engine patent claimed "an array of information cells arranged in row and column format," "displaying a row of spreadsheet page identifiers along one side" and a "formula including a cell reference to a particular cell on another [] spreadsheet page[] having a particular spreadsheet page identifier." 2018 U.S. App. LEXIS 28412 at *8-*9. The Trading Tech. patent claims: "displaying the bid and ask display regions in relation to fixed price levels positioned along the common static price axis such that when the inside market changes, the price levels along the common static price axis do not move and at least one of the first and second indicators moves in the bid or ask display regions relative to the common static price axis. . . ." 675 F. App'x at 1003. In Core Wireless, one patent claimed "being configured to display on the screen an application summary that can be reached directly from the menu, wherein the application summary displays a limited list of data offered within the one or more applications. . ." 880 F.3d at 1359. -7- 6 B. The '811 and '023 Patents Do Not Recite an Inventive Concept The patents are devoid of any technological advances and do not present any inventive concepts in their claims to establish patent eligibility. Match's arguments with respect to the "inventive" concept mirror its arguments under Step 1: that "automatically remov[ing]" a profile card and "swiping" create an inventive concept. As discussed above, the specifications contain no technical description of how to implement the "swiping" or "automatically remov[ing]" elements and therefore they cannot supply the inventive concept. See, e.g., Move, 2018 WL 656377, at *3. Match suggests that a number of conclusory allegations and legal conclusions regarding the patentability of the '811 and '023 patents preclude a finding of patent ineligibility here. (See D.I. 30 at 13, 17.) These allegations do not meaningfully refute the analysis of patent ineligibility, nor can they save the '811 or '023 patents. In Aatrix Software Inc. v. Green Shades Software Inc., the Federal Circuit found there were "concrete allegations in the second amended complaint that individual elements and the claimed combination are not well-understood, routine, or conventional activity" and "regarding the claimed combination's improvement to the functioning of the computer." 882 F.3d 1121, 1128 (Fed. Cir. 2018) ("Aatrix I") (emphasis added). Here, unlike in Aatrix, there are no "concrete allegations" in the FAC. The conclusory statements in Match's FAC bear no resemblance to the high level of specific factual detail included in the second amended complaint in Aatrix. Compare (FAC at ¶¶ 102-106, 124-128) with Aatrix Software, Inc. v. Green Shades Software, Inc., No. 3:15-164, 2016 WL 8578448 (M.D. Fla. Apr. 26, 2016); see also Aatrix I, 882 F.3d at 1131 n.3 (Reyna, J., concurring-in-part and dissenting-in-part) (enumerating the high level factual detail and attachments included in Aatrix's second amended complaint). Match suggests that any allegations in the FAC regarding patent eligibility must defeat a motion to dismiss, "unless contradicted by the patent specification itself." (D.I. 30 at 13). This overstates the Court's holding in Aatrix I and Aatrix II. Although Judge Moore's concurring -8- 6 opinion suggested that it would be appropriate to grant dismissal where the specification admitted that additional claim elements were well-understood, routine and conventional, it did not suggest that dismissal was only appropriate under that circumstance. See Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1356 (Fed. Cir. 2018) ("Aatrix II"). As discussed above, the specification is inconsistent with Match's allegations because it provides no technical details on how to implement swiping or the "automatic" functionality and does not describe any of the alleged benefits claimed by Match. See Move, 2018 WL 656377, at *5; Symantec Corp. v. Zscaler, Inc., No. 17-cv-04426-JST, 2018 WL 3537201, at *3 (N.D. Cal. Jul. 23, 2018). Here, Match provides no factual support from the patents' specifications or otherwise for its conclusory statements and attorney argument. The Court is not obligated to accept Match's naked assertions as true. See Doe v. Robertson, 751 F.3d 383, 387 (2014) ("A complaint must fail if it offers only naked assertions devoid of further factual enhancement.") (internal quotation marks omitted). III. THE COURT SHOULD DISMISS MATCH'S TRADE SECRET CLAIM A. Match's Opposition Does Not Remedy the FAC's Failure to Plead Requisite Components of Trade Secret Misappropriation As with Match's FAC, Match's Opposition wholly ignores the TUTSA's and DTSA's definition of a "trade secret." To be a trade secret, "the information derives independent economic value, actual or potential, from not being generally known." Tex. Civ. Prac. & Rem. Code § 134A.002(6); 18 U.S.C. § 1839(3); Finite State Machine Labs, Inc. v. Spectracom Corp., No. 17-1040, 2018 WL 4171503, at *4 (W.D. Tex. Aug. 30, 2018). Rather than address the lack of facts in its FAC alleging this requirement, Match instead creates a strawman citing Seventh Circuit law. (D.I. 30 at 18.) The language Match cites from Learning Curve pertains to an analysis of the ease or difficulty with which a concept could have been properly acquired or duplicated by others—not the determination of a concept's independent economic value from being kept secret. -9- 6 See Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 729 (7th Cir. 2003). Match's other arguments fare no better regarding the FAC's silence on independent economic value. Match alleges that the Unimplemented Features derive economic value based on the "first-mover advantage." (D.I. 30. at 18-19.) As noted in the FAC, however, Tinder "had previously announced its 'rewind' feature before Bumble released its rewind feature" and thus, was the first-mover. (FAC at ¶ 194.) The FAC does not—and cannot—allege any harm to Tinder's ability to be the "first-mover. (See FAC at ¶¶ 187-200.) Because there are insufficient facts on the face of the FAC to establish that Match's Unimplemented Features constitute a trade secret under TUTSA's and DTSA's requirements, Match's claim for trade secret misappropriation should fail. See HT Res., Inc. v. Ralston, No. 1:17- 350, 2017 WL 7921242, at *7 (W.D. Tex. Dec. 7, 2017) (dismissing trade secret claims regarding marketing where "the Amended Complaint offer[ed] nothing on which to base a finding that any item on the list meets the definition of a trade secret" under the TUTSA). B. Bumble Has Established a Limitations Defense Notably absent from Match's Opposition is the exact date upon which Match became aware of the Tech Crunch article and the backtrack feature. (See D.I. 23, Ex. 1.) In Briskin, cited by Match, an article was published on June 3, 1970 and plaintiffs affirmatively asserted that "no plaintiff read the article in the trade paper until June 16, 1970." Briskin v. Ernst & Ernst, 589 F.2d 1363, 1367-68 (9th Cir. 1978). The court found that it could not impute knowledge of the contents of an article on a subscriber before the day he saw it. Id. Match's silence on when Match became aware of the Tech Crunch article is telling. IV. CONCLUSION For the reasons set forth above, and in Bumble's Motion, Bumble respectfully requests that the Court grant Bumble's Motion to Dismiss in its entirety. -10- 6 Dated: October 18, 2018 Respectfully submitted, By: Joseph M. Drayton Joseph M. Drayton (Pro Hac Vice) NY Bar No. 2875318 COOLEY LLP 1114 Avenue of the Americas New York, NY 10036 Telephone: (212) 479-6000 Facsimile: (212) 479-6275 jdrayton@cooley.com Rose S. Whelan (Pro Hac Vice) DC Bar No. 999367 COOLEY LLP 1299 Pennsylvania Ave., N.W. Suite 700 Washington, DC 20004 Telephone: (202) 842-7800 Facsimile: (202) 842-7899 rwhelan@cooley.com Michael G. Rhodes (Pro Hac Vice) CA 116127 Matthew Caplan (Pro Hac Vice) CA Bar No. 260388 COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone (415) 693-2000 Facsimile: (415) 693-2222 mrhodes@cooley.com mcaplan@cooley.com Deron R. Dacus Texas Bar No. 00790553 THE DACUS FIRM, PC 821 ESE Loop 323, Suite 430 Tyler, TX 75701 Telephone: (903) 705-1117 Facsimile: (903) 581-2543 ddacus@dacusfirm.com ATTORNEYS FOR DEFENDANT BUMBLE TRADING, INC. -11- 6 CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically with the Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel of record on October 18, 2018. Joseph M. Drayton Joseph M. Drayton -1-